Petition for Writ of Certiorari — Lonnell Tucker, Petitioner v. United States

Supreme Court briefMay 2, 2022

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NO. _____________

In The

Supreme Court of the United States

-------------------------♦-------------------------

LONNELL TUCKER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

-------------------------♦------------------------ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

-------------------------♦-------------------------

PETITION FOR WRIT OF CERTIORARI

-------------------------♦------------------------Stephen C. Leckar

Counsel of Record

KALBIAN HAGERTY LLP

888-17th Street, NW, 12th Floor

Washington, D.C. 20036

(202) 742-4242

sleckar@kalbianhagerty.com

Counsel for Petitioner

Dated: May 2, 2022

THE LEX GROUPDC ♦ 1050 Connecticut Avenue, N.W. ♦ Suite 500, #5190 ♦ Washington, D.C. 20036

(202) 955-0001 ♦ (800) 856-4419 ♦ www.thelexgroup.com

QUESTION PRESENTED FOR REVIEW

A fourth of the federal cases reported to the United States Sentencing

Commission are narcotics prosecutions. The issue of drug quantity frequently heavily

influences the element of Relevant Conduct which factors into those offenders’

Sentencing Guidelines’ Base Offense Levels.

After being convicted by a jury for a federal narcotics conspiracy charge,

Petitioner unsuccessfully contested the district judge’s approach to determining the

quantity of drugs for which he was being held accountable. On appeal, Petitioner

contended that the trial judge’s methodology should be reviewed de novo. The Circuit

Court reviewed for clear error, which is the standard followed in three courts of

appeals. Conversely, five Circuits apply a de novo standard of review; the process

employed by two other Circuits is equally rigorous. This distinction can make a

difference: courts using the more vigorous standard of review have reversed sentences

flowing from methodologies that depended more on conjecture than recognized

criteria.

This case is unaffected by the doctrine of sentencing guidelines abstention.

Deciding the standard of appellate review is a matter for this Court. Thus understood,

the question presented is whether the Court should resolve the circuit conflict by

requiring de novo review for contested methodologies used to determine Base Offense

Levels in narcotics prosecutions.

RULE 14.1(b) CERTIFICATE

Petitioner certifies as follows:

(i)

Parties. The parties who appeared before the United States District

Court for the District of Columbia and in the District of Columbia Circuit in the

proceedings that resulted in the judgment from which a writ of certiorari is sought

were Petitioner Lonnell Tucker (U.S. Ct. App. No 19-3042) and Respondent the

United States of America. Jonathan Fields and Abdul Samuels were co-defendants at

trial. James Venable, Darryl Smith, and Lacy Hamilton pleaded guilty in the District

Court. Defendant Calvin Wright was acquitted and Artemis Wilson was a fugitive.

(ii)

Corporate disclosure statement: No corporation was before the District

Court or Court of Appeals below.

(iii)

Related cases: On April 25, 2022, Mr. Fields (U.S. Ct. App. No. 19-3043)

filed a petition for a writ of certiorari (21-7724). On April 5, 2022, the Chief Justice

granted the Application (No. 21A487) of Mr. Samuels (U.S. Ct. App. No. 19-3078) for

an extension of time to file a petition for a writ of certiorari. Petitioner is aware of no

other related cases in any other court or before this Court.

The Court of Appeals’ opinion is reported at United States v. Tucker, 12 F.4th

804 (D.C. Cir. 2021). On January 13, 2022, the Court of Appeals denied Petitioner’s

timely motions for rehearing or rehearing en banc.

/s/ Stephen C. Leckar

Stephen C. Leckar, Counsel of Record

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .................................................................... i

RULE 14.1(b) CERTIFICATE ....................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED ........................................................... 2

STATEMENT OF THE CASE....................................................................................... 2

FACTUAL BACKGROUND .......................................................................................... 4

Description of the underlying prosecution .............................................. 4

The sentencing methodology .................................................................... 7

REASONS FOR GRANTING THE PETITION .......................................................... 10

ARGUMENT AND REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT .................................................................................... 16

There is an inter-circuit split on the proper standard of review of

the methodology to determine drug quantity findings ......................... 17

II.

A deferential standard of review is not well-suited for assessing

a sentencing court’s choice of methodologies ........................................ 19

III.

A de novo standard should govern review of claims of unreliable

factfinding in sentencings that involve drug quantity

calculations ............................................................................................. 22

IV.

This case is a good vehicle for review ................................................... 30

CONCLUSION............................................................................................................. 31

APPENDIX:

Judgment of the

United States Court of Appeals

For the District of Colombia Circuit

entered September 3, 2021 ............................................................................... 1a

Opinion of the

United States Court of Appeals

For the District of Colombia Circuit

entered September 3, 2021 ............................................................................... 2a

Amended Judgment in a Criminal Case of the

United States District Court

District of Colombia

entered November 12, 2019 ............................................................................ 39a

Order of

United States Court of Appeals

For the District of Colombia Circuit

Re: Denying Petition for Panel Rehearing

entered January 13, 2022 ............................................................................... 46a

Order of

United States Court of Appeals

For the District of Colombia Circuit

Re: Denying Petitions for Rehearing en banc

entered January 13, 2022 ............................................................................... 47a

Excerpts of Transcript of Sentencing Hearing before

The Honorable Amit P. Mehta

on June 14, 2019 ............................................................................................. 48a

TABLE OF CASES

CASES

Page(s)

Bose Corp. v. Consumers Union,

466 U.S. 485 (1984) ........................................................................................... 22

Braxton v. United States,

500 U.S. 344 (1991) ........................................................................................... 15

Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,

532 U.S. 424 (2001) ........................................................................................... 21

Dickinson v. Zurko,

527 U.S. 150 (1999) ........................................................................................... 10

Gall v. United States,

552 U.S. 38 (2007) ............................................................................................. 19

Koon v. United States,

515 U.S. 1190 (1995), later op.,

518 U.S. 81 (1996) ....................................................................................... 16, 30

Ornelas v. United States,

517 U.S. 690 (1996) ........................................................................................... 21

Peugh v. United States,

569 U.S. 530 (2013) ........................................................................................... 14

Salve Regina College v. Russell,

499 U.S. 225 (1991) ........................................................................................... 22

Southwest Voter Registration Educ. Pro. v. Shelley,

344 F.3d 914 (9th Cir. 2003) ............................................................................. 10

United States v. Acosta,

534 F.3d 578 (7th Cir. 2008) ............................................................................. 13

United States v. Ainabe,

938 F.3d 685 (5th Cir. 2019) ............................................................................. 18

United States v. Alfonso,

479 F.3d 570 (8th Cir. 2007) ............................................................................. 18

United States v. Archer,

671 F.3d 149 (2d Cir. 2011) .............................................................................. 12

United States v. Bagcho,

923 F.3d 1131 (D.C. Cir. 2019) ......................................................................... 24

United States v. Bennett,

554 Fed. App’x 817 (11th Cir. 2014) ................................................................. 12

United States v. Block,

705 F.3d 755 (7th Cir. 2013) ............................................................................. 29

United States v. Booker,

543 U.S. 220 (2005) ..................................................................................... 14, 19

United States v. Bradley,

628 F.3d 394 (7th Cir. 2010) ............................................................................. 17

United States v. Candelaria-Silva,

714 F.3d 651 (1st Cir. 2013) ....................................................................... 23, 24

United States v. Chaney,

921 F.3d 572 (6th Cir. 2019) ............................................................................. 19

United States v. Chase,

499 F.3d 1061 (9th Cir. 2007) ..................................................................... 25, 26

United States v. Correa-Alicea,

585 F.3d 484 (1st Cir. 2009) ....................................................................... 27, 28

United States v. Crosby,

397 F.3d 103 (2d Cir. 2005) .............................................................................. 14

United States v. Culps,

300 F.3d 1069 (9th Cir. 2002) ..................................................................... 24, 25

United States v. Dunston,

851 F.3d 91 (1st Cir. 2017) ............................................................................... 10

United States v. Fagans,

406 F.3d 138 (2d Cir. 2005) .............................................................................. 14

United States v. Flores,

725 F.3d 1028 (9th Cir. 2013) ........................................................................... 12

vii

United States v. Foley,

783 F.3d 7 (1st Cir. 2015) ................................................................................. 18

United States v. Forrester,

592 F.3d 972 (9th Cir. 2010) ....................................................................... 26, 27

United States v. Freeman,

763 F.3d 322 (3rd Cir. 2014) ............................................................................. 14

United States v. Giggey,

867 F.3d 236 (1st Cir. 2017) ....................................................................... 10, 12

United States v. Hardin,

437 F.3d 463 (5th Cir. 2006) ....................................................................... 12, 21

United States v. Hardy,

289 F.3d 608 (9th Cir. 2002) ............................................................................. 26

United States v. Harris,

821 F.3d 589 (5th Cir. 2016) ............................................................................. 18

United States v. Hartstein,

500 F.3d 790 (8th Cir. 2007) ............................................................................. 18

United States v. Hickman,

626 F.3d 756 (4th Cir. 2010) ............................................................................. 11

United States v. Hill,

563 F.3d 572 (7th Cir. 2009) ............................................................................. 13

United States v. Kirschner,

995 F.3d 327 (3rd Cir. 2021) ............................................................................. 17

United States v. Kilby,

443 F.3d 1135 (9th Cir. 2006) ........................................................................... 25

United States v. Klein,

543 F.3d 206 (5th Cir. 2008) ............................................................................. 18

United States v. Madison,

863 F.3d 1001 (8th Cir. 2017) ........................................................................... 14

United States v. Marquez,

699 F.3d 556 (1st Cir. 2012) ............................................................................. 24

viii

United States v. Maynard,

984 F.3d 948 (10th Cir 2020) ............................................................................ 18

United States v. McCrimmon,

362 F.3d 725 (11th Cir. 2004) ........................................................................... 12

United States v. McDowell,

713 F.3d 571 (10th Cir 2013) ............................................................................ 20

United States v. Mendoza,

510 F.3d 749 (7th Cir. 2007)) ............................................................................ 13

United States v. Millán-Machuca,

991 F.3d 7 (1st Cir. 2021) ................................................................................. 10

United States v. Moore,

666 F.3d 313 (4th Cir. 2012) ............................................................................. 17

United States v. Morales,

655 F.3d 608 (7th Cir. 2011) ............................................................................. 29

United States v. Moralez,

808 F.3d 362 (8th Cir. 2015) ............................................................................. 14

United States v. Pardo,

636 F.3d 535 (D.C. Cir. 1980) ........................................................................... 24

United States v. Perez,

962 F.3d 420 (9th Cir. 2020) ............................................................................. 12

United States v. Price,

409 F.3d 436 (D.C. Cir. 2005) ........................................................................... 14

United States v. Riccardi,

989 F.3d 476 (6th Cir. 2021) ............................................................................. 19

United States v. Ruiz,

446 F.3d 762 (8th Cir. 2006) ............................................................................. 11

United States v. Senn,

129 F.3d 886 (7th Cir. 1997) ............................................................................. 18

United States v. Sepulveda,

15 F.3d 1161 (1st Cir. 1993) ............................................................................. 24

United States v. Shonubi,

998 F.2d 84 (2d Cir. 1993), appeal after remand,

103 F.3d 1085 (2d Cir. 1997) ............................................................................ 12

United States v. Smith,

705 F.3d 1268 (10th Cir. 2013) ......................................................................... 13

United States v. Snow,

663 F.3d 1156 (10th Cir. 2011) ......................................................................... 18

United States v. (Forrest) Tucker,

404 U.S. 443 (1972) ........................................................................................... 17

United States v. Vasquez,

389 F.3d 65 (2d Cir. 2004) ................................................................................ 12

United States v. Vazzano,

906 F.2d 879 (2d Cir. 1990) .............................................................................. 12

United States v. Wacker,

72 F.3d 1453 (10th Cir. 1995) ........................................................................... 13

United States v. Williamson,

53 F.3d 1500 (10th Cir. 1995) ........................................................................... 13

United States v. Wright,

42 F.3d 1387 (4th Cir. 1994) ............................................................................. 12

United States v. Young,

863 F.3d 685 (7th Cir. 2017) ............................................................................. 13

Wheaton Coll. v. Burwell,

573 U.S. 958, 134 S. Ct. 2806 (2014) ................................................................ 15

STATUTES

18 U.S.C. § 371 ............................................................................................................. 18

18 U.S.C. § 664 ............................................................................................................. 18

18 U.S.C. § 669 ............................................................................................................. 18

18 U.S.C. § 1029(a)(2) .................................................................................................. 18

18 U.S.C. § 1341 ........................................................................................................... 18

18 U.S.C. § 1343 ........................................................................................................... 18

18 U.S.C. § 1347 ..................................................................................................... 18, 19

18 U.S.C. § 1349 ..................................................................................................... 18, 19

18 U.S.C. § 1709 ........................................................................................................... 19

18 U.S.C. § 1957 ........................................................................................................... 18

28 U.S.C. § 1254(1) ........................................................................................................ 1

GUIDELINES

U.S.S.G. § 1B1.3............................................................................................................. 2

U.S.S.G. § 2B1.1(b)(1)(J).............................................................................................. 18

U.S.S.G. § 3B1.2........................................................................................................... 13

RULE

Sup. Ct. Rule 10 ........................................................................................................... 15

OTHER AUTHORITIES

Appellate Review of Sentences: A Symposium at the Judicial Conference of

the United States Court of Appeals for the Second Circuit,

32 F.R.D. 249 (1962) ............................................................................................... 20

Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making,

151 U. PA. L. REV. 1639 (2003) .......................................................................... 20

Harry T. Edwards & Linda A. Elliott, FEDERAL STANDARDS OF REVIEW—

REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS 13 (2007) ................. 22

Joshua B. Fischman & Max M. Schanzenbach,

Do Standards of Review Matter?

The Case of Federal Criminal Sentencing, 40 J. LEGAL STUD. 405 (2011) ........... 16

Nancy Gertner, Apprendi/Booker and Anemic Appellate Review,

99 N.C. L. REV. 1369 (2021) .................................................................................. 21

Carissa B. Hessick & Andrew F. Hessick,

Appellate Review of Sentencing Decisions, 60 ALA. L. REV. 1 (2008) .............. 20, 22

Jonathan S. Masur & Lisa Larrimore Ouellette, Deference Mistakes,

82 U. CHI. L. REV. 643 (2015) .................................................................................... 16

Henry P. Monaghan, Constitutional Fact Review,

85 COLUM. L. REV. 229 (1985) ................................................................................ 20

Note, More Than A Formality: The Case for Meaningful Substantive

Reasonableness Review, 127 HARV. L. REV. 951 (2014) ......................................... 20

Michael M. O’Hear, Appellate Review of Sentences: Reconsidering Deference,

51 WM. & MARY L. REV. 2123 (2010) ...................................................................... 20

Peter Nocolas, De Novo Review in Deferential Robes: A Deconstruction of the

Standard of Review of Evidentiary Errors in the Federal System,

54 SYRACUSE L. REV. 531 (2004) ............................................................................ 10

Jacob Schuman, Probability and Punishment: How to Improve Sentencing by

Taking Account of Probability, 18 NEW CRIM. L. REV. 214 (2015) .................... 11

Dawinder S. Sidhu, “Sentencing Guidelines Abstention” (manuscript)

(Mar. 15, 2022) (available at: https://ssrn.com/abstract=3950703)

(last accessed April 26, 2022) ................................................................................. 15

United States Sentencing Commission,

U.S. SENTENCING GUIDELINES MANUAL (2021) ........................................................ 16

United States Sentencing Commission, “Federal Offenders by Type of Crime,”

FISCAL YEAR 2020 OVERVIEW OF FEDERAL CRIMINAL CASES (April 2021) ................ 16

Randall H. Warner, All Mixed Up about Mixed Questions,

7 J. APP. PRAC. & PROCESS 101 (2005) ................................................................... 21

No. ______

In the Supreme Court of the United States

_______________

UNITED STATES OF AMERICA

LONNELL TUCKER

________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________

PETITION FOR A WRIT OF CERTIORARI

Lonnell Tucker respectfully petitions for a writ of certiorari to review the

United States Court of Appeals for the District of Columbia Circuit’s judgment below.

OPINIONS BELOW

The court of appeals’ opinion affirming Petitioner’s conviction and sentencing

is reported at United States v. Tucker, 12 F.4th 804 (D.C. Cir. 2021) (Pet. App. 2a38a).

JURISDICTION

The court of appeals’ judgment was entered on September 3, 2021. On January

13, 2022, the circuit court denied Petitioner’s motions for rehearing or rehearing en

banc. (Pet. App. 46a-47a). Jurisdiction is invoked under 28 U.S.C. § 1254(1).

SENTENCING GUIDELINES PROVISION INVOLVED

Section 1B1.3 of the United States Sentencing Guidelines provides:

(a) CHAPTERS TWO (OFFENSE CONDUCT) AND THREE

(ADJUSTMENTS). Unless otherwise specified, (i) the base offense level

where the guideline specifies more than one base offense level, (ii) specific

offense characteristics and (iii) cross references in Chapter Two, and (iv)

adjustments in Chapter Three, shall be determined on the basis of the

following:

(1) (A) all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant;

and

(B) in the case of a jointly undertaken criminal activity (a criminal

plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts

and omissions of others that were—

(i)

within the scope of the jointly undertaken criminal activity,

(ii)

in furtherance of that criminal activity, and

(iii) reasonably foreseeable in connection with that criminal

activity; that occurred during the commission of the offense

of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for

that offense; and

(2) solely with respect to offenses of a character for which §3D1.2(d)

would require grouping of multiple counts, all acts and omissions described

in subdivisions (1)(A) and (1)(B) above that were part of the same course of

conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of

such acts and omissions; and

(4) any other information specified in the applicable guideline.

STATEMENT OF THE CASE

Petitioner asks the Court to resolve an inter-circuit split concerning the

standard of review governing appeals of federal sentencings that challenge the

methodology used to calculate drug quantity under the Sentencing Guidelines’

Relevant Conduct provision. As the table below explains, several circuits apply de

novo or enhanced review. Others, including the D.C. Circuit, review only for clear

error.

De Novo Review

First, Fourth, Fifth,

Ninth, & Eleventh

Circuits.

Enhanced Review

Clear Error

Second & Tenth Circuits

Third, Seventh, Eighth, &

D.C. Circuits

Resolving this split to determine how underlying methodologies should be

reviewed is necessary. Determining the “Relevant Conduct,” meaning the quantity of

illicit drugs involved in an underlying offense, is a crucial aspect of sentencing those

convicted of federal narcotics offenses. A greater quantum of drugs results in a higher

Base Offense Level and greater potential sentence.

Petitioner’s case is a prime example. In 2018 he was included in a multidefendant multi-count indictment brought in the District Court for the District of

Columbia that alleged conspiracy to distribute narcotics and, as to others, various

weapons violations. A jury convicted him of the conspiracy offense but made no

findings concerning the quantity of drugs involved. Aside from a street-level

controlled “buy” of heroin and three unconsummated transactions with a by-then

deceased informant, no evidence linked Petitioner to any level of dealings in

furtherance of the charged conspiracy. Over objection, the District Judge utilized

speculation to determine Petitioner’s Base Offense Level and after using a flawed

methodology imposed a sentence of sixty months imprisonment and thirty-six months

of supervised release.

In upholding that sentence, the D.C. Circuit used a clear error standard of

review. That highly deferential approach is ill-suited for reviewing judges’

methodologies used to estimate amounts of drugs. Had the court of appeals used a de

novo standard of review, Petitioner’s Relevant Conduct calculation almost surely

would have been found unduly speculative and the cause would have been remanded

for resentencing.

FACTUAL BACKGROUND 1

Petitioner’s sentence was derived from using a process that depended on

flawed assumptions of Relevant Conduct. As a result, his Base Offense Level was

artificially inflated.

Description of the underlying prosecution

The government alleged a narcotics distribution scheme headed by Jonathan

Fields, in which Petitioner and several others had participated. The prosecution

charged that scheme ran between June 2017-February 2018, operating from the

second floor of a barbershop in the southeastern quadrant of the District of Columbia.

Fields leased those premises to store contraband, associated paraphernalia, and

weapons. Drugs were dispensed upstairs, and outside of the barbershop and

elsewhere. 2

Petitioner will refer to pages in his Main Brief (“MB:_”), Reply Brief (“RB:_”) and

Appendix, as filed in the Court of Appeals (“APP”).

MB:4-6, 80-82.

At trial the government presented several agents and investigators, films of

“controlled buys,” and photographs of the defendants’ interaction outside of the

barbershop among themselves and others. In addition, the prosecution offered

numerous packages of heroin and other drugs, scales, baggies, cutting agents,

weapons, and other items seized from the barbershop, together with Fields’s coded

ledgers and drug-related evidence seized from Fields’s car. Byran Clark (“Clark”),

the sole testifying cooperating witness, described dealings with Fields during Clark’s

weekly visits to the barbershop. 3 Several recorded telephone calls made while Fields

awaited trial also were presented. 4

In the defense case, Fields testified. His presentation was so outlandish that

his co-defendants unsuccessfully sought severance. 5

The evidence against Petitioner was limited. The prosecution presented no

confessions, admissions or wiretaps implicating him. Save for some coded text

messages (which he did not exchange with the co-conspirators (and which the District

Judge found undecipherable), the recorded half-gram sale of heroin and three

abortive “buys,” nobody identified what drugs Petitioner allegedly marketed or how

much he was dealing. Fields’ drug ledgers revealed nothing about Petitioner. And no

MB:80-82, 86-88; RB:39.

MB:86, 88.

MB:86-90. The Panel’s description of Fields’s deportment as “less than exemplary”

(12 F.4th at 824) is understated.

evidence revealed him marketing significant amounts of contraband: he lacked a car,

residence, and bank account and no cash was seized from him. 6

What the Government possessed was proximity. Petitioner frequently was

near the barbershop—a haven for many African-American men 7—and two or three

times over the seven-month investigation agents observed him around Fields in

circumstances that suggested drug deals—but no one could say that they were, much

less what drug was sold and what quantity was delivered. Clark also made a vague

comment about Petitioner’s seemingly having a “license” to be around the barbershop

but placed him inside there only once over several months of Clark’s visiting Fields.

Clark wasn’t sure whether Petitioner was secreting drugs or adjusting his pant legs. 8

Clark never claimed to have seen Petitioner marketing drugs, spoken with him

or anyone else about Tucker’s dealing anything, or to knowing what Petitioner was

selling or his source(s) of supply. 9 Nor did any other witness so testify. And nobody

placed Petitioner as offering drugs at a room on Barnaby Place, NE, where various of

Fields’ cohorts named in the indictment marketed drugs. 10

MB:83-85,101-102, 107-08, 115; RB:40-41. The prosecutor’s opening statement

devoted two of seventy minutes to Petitioner. The prosecution witnesses’ direct

testimony about him appeared on 64 of the 870-page trial record—about 7.3% of

the direct examination. MB:77-78.

RB:40.

MB:84-85, 105-06; RB:40-41, 51-55.

MB:84-85, 102-03; RB:40-41.

MB:105.

The errant sentencing methodology

Other than the one half-gram “controlled” purchase of heroin, the Government

never sought at trial to quantify any amounts of narcotics attributable to Petitioner

and within his conspiratorial agreement’s scope. Nor did the prosecution ask the jury

to make any such findings; the verdict merely found ‘proven” a “detectable amount”

of heroin as within the reasonably foreseeable scope of Tucker’s conspiratorial

agreement. 11

At sentencing Petitioner argued that “there was no evidence elicited that [he]

received any narcotics (let alone any particular amount) from anyone involved in this

alleged conspiracy . . . .” 12 He protested the Presentence Report’s proposal to hold him

accountable for the drugs found upstairs at the barbershop because no evidence had

placed him there. 13 Although GPS evidence placed him around that area on nearly a

daily basis, “there was no testimony or evidence that on any one of those particular

days or even all of those days . . . that Mr. Tucker was going there to sell drugs.” 14

Petitioner contended that “there is as much support for a finding that Mr. Tucker was

responsible for 40 grams but less than 60 grams . . . as there is for the higher drug

amount” and recommended a 48-month sentence. 15

Jury Verdict, p.3, ¶4 [223].

MB:105; Tucker’s Memorandum in Aid of Sentencing at 6 [260].

MB:105.

MB:105-06.

MB:106.

In response, the prosecution demanded that Petitioner be accountable for

everything found in the barbershop. The government sought a 234-month sentence—

eleven times its pretrial offer of 15-21 months. 16

The Trial Judge concluded that Tucker was “regularly at the barbershop.” 17

The judge then deemed reliable: (a) the deceased informant’s single $100 purchase of

0.58 grams of heroin in June 2017; (b) three attempted “buys” made between July

and August 2017 (these being recited in the affidavit for a search warrant and then

alluded to briefly at trial); and (c) surveillance on three occasions when agents

inferred that Petitioner must have made drug sales (although they had no notion of

what or how much he had supposedly sold). 18

The district court recognized that Clark, the testifying cooperator, never placed

Petitioner upstairs and that Petitioner’s coded texts were indecipherable. 19 The judge

characterized Tucker as “dealing on the street level,” retailing outside of the

barbershop “small quantities of drugs . . . which could theoretically be used either for

personal use or resale in small quantities.” 20 Petitioner was held responsible and

MB:106; RB:52-55; Government Memorandum in Aid of Sentencing at 18 [259];

Tucker Sentencing Memorandum at 3, 6 [260].

MB:106.

MB:106-07.

MB:107.

Tucker Sentencing at 22-26 (June 14, 2019) (App. 59a-63a). The District Judge

recognized that Tucker was not found to have any wealth. (App. 63a).

sentenced for five half-gram sales of heroin per week over the thirty weeks of the

conspiracy, yielding 75 grams of heroin with a total converted drug weight of 75

kilograms—all without an accurate process to support that conclusion and with no

evidence showing which of Fields’ wares Petitioner was marketing and how much of

it he sold over the course of the conspiracy. 21

Another signal of concern here is the district court’s recognition that Tucker

lacked any heroin three of the four times the by-then-deceased informant

unsuccessfully approached him. 22 The fact that these other attempted purchases broke

down because Tucker lacked the sought-after goods (the precise drugs and quantities

sought were never clarified) call into question his ability to make five half-gram sales of

heroin per week.

The Court of Appeals devoted scant attention to Tucker’s argument on appeal.

It recognized that “one sale is a small sample size” but concluded—with no discussion

of the Trial Judge’s methodology— that would not render the court's extrapolation

unduly speculative, particularly when it results in a conservative estimate.” 23 Exactly

how this yielded a “conservative estimate” was not addressed; the appellate panel

simply stated that “Tucker's frequent presence at the barbershop and the quantity of

Tucker Sentencing at 27 (App. 64a).

Id. at 22-23 (App. 59a-60a).

Tucker, 12 F.3d at 829.

heroin seized there” was sufficient to support the conclusion that he’d sold five halfgram packets of heroin weekly for thirty weeks. 24 However, this conclusion was not

the result of any “art,” as the appellate court described it, and it surely was not based

on any “science.” 25 Instead, it was conjecture based on the thinnest of evidence, as

no one had pointed to any successful level of sales made by Tucker apart from the

isolated half-gram street “buy.”

REASONS FOR GRANTING THE PETITION

A case’s substantive outcome can change “depending on which standard [of

review] is used.” 26 It is undeniable that “[d]rug quantity is an important integer in

the sentencing calculus for most controlled substance offenses.” 27 In such cases,

“relatively small differences in the quantity or kind of drugs involved in an offense

Tucker, 12 F.3d at 829.

Id.

Dickinson v. Zurko, 527 U.S. 150, 161-162 (1999); Southwest Voter Registration

Educ. Pro. v. Shelley, 344 F.3d 914, 917 (9th Cir. 2003) (en banc) (“standard of

review is important to our resolution of this case”). See also Peter Nocolas, De

Novo Review in Deferential Robes: A Deconstruction of the Standard of Review of

Evidentiary Errors in the Federal System, 54 SYRACUSE L. REV. 531, 531 n.1 (2004)

(citing examples).

United States v. Giggey, 867 F.3d 236, 238-39 (1st Cir. 2017) (citing United States

v. Dunston, 851 F.3d 91, 94 (1st Cir. 2017)). See also United States v. MillánMachuca, 991 F.3d 7, 30 (1st Cir. 2021) (“The guideline sentencing ranges for

controlled substance offenses are determined primarily by the drug quantity for

which the defendant is responsible.”).

may dramatically alter a defendant’s prison term....” 28 And yet the “[f]ederal district

courts have long struggled with extrapolating drug amounts under the U.S.

Sentencing Guidelines, which instruct that, ‘[w]here ... the amount [of narcotics]

seized does not reflect the scale of the offense, the court shall approximate the

quantity of the controlled substance.’” 29

In all events, the practice of judges sentencing offenders based on

extrapolations is inherently risky:

When drug quantities are calculated based on a few key data points,

they are particularly vulnerable to error. For instance, the court might

misjudge the street price of the drug when converting cash to drug

weight or overestimate the capacity of a drug-manufacturing

defendant’s laboratory. Alternatively, the court might receive bad

evidence on the number of drug sales a trafficker typically made, or the

quantity of drugs sold in each transaction. In each of these cases, a

minor mistake would be multiplied into an enormous miscalculation – a

phenomenon described as the “pyramiding [of] unreliable inferences.”

Accordingly, even when they satisfy the preponderance-of-the-evidence

standard of proof, drug quantity estimates based on inference and

extrapolation will “inherently possess a degree of uncertainty.” 30

Tucker unsuccessfully sought de novo review of the sentencing court’s

uncertain methodology used to determine his Base Offense Level. That is the

United States v. Ruiz, 446 F.3d 762, 773 (8th Cir. 2006) (cleaned up).

United States v. Hickman, 626 F.3d 756, 769 (4th Cir. 2010) (citation omitted).

Jacob Schuman, Probability and Punishment: How to Improve Sentencing by

Taking Account of Probability, 18 NEW CRIM. L. REV. 214, 248 (2015) (cleaned

up).

standard by which the First, Fourth, Fifth, Ninth and Eleventh Circuits have

reviewed district judges’ approaches to calculating drug quantities in sentencing. 31

This de novo, heightened standard of review of the methods devised to calculate

drug weight also conceptually resembles the Second and Tenth Circuits’ analytical

constructs. In the former court, questions of law over the Guidelines’ operation are

reviewed de novo whereas findings of fact are evaluated for clear error. 32

And

“[w]hether narcotics which were neither charged in an indictment nor physically

seized can constitute conduct relevant to the offense of conviction is a matter of legal

interpretation, and thus is subject to de novo review.” 33

Giggey, 867 F.3d at 240 (1st Cir.; challenge to methodology “amounts to a

challenge to the district court’s application of the sentencing guidelines” and is

reviewed de novo) (citation omitted)); United States v. Flores, 725 F.3d 1028, 1035

(9th Cir. 2013); United States v. Hardin, 437 F.3d 463, 471 (5th Cir. 2006);

United States v. McCrimmon, 362 F.3d 725, 728 (11th Cir. 2004) (cited in United

States v. Bennett, 554 Fed. App’x 817, 821n.3 (11th Cir. 2014)); United States v.

Wright, 42 F.3d 1387, *3 (4th Cir. 1994) (unpublished) (“We review the proper

method of calculating drug weight as a legal question subject to de novo review…”)

(citation omitted). Cf., United States v. Perez, 962 F.3d 420, 448 (9th Cir. 2020)

(recognizing that “method of approximation must be reviewed de novo”).

United States v. Vasquez, 389 F.3d 65, 68 (2d Cir. 2004).

United States v. Vazzano, 906 F.2d 879, 883 (2d Cir. 1990). In the Second Circuit,

“[t]o sustain quantity-based enhancements for relevant conduct, the court must

base its findings on ‘specific evidence’ that the offense involved the requisite

quantity of items.” United States v. Archer, 671 F.3d 149, 162 (2d Cir. 2011). For

drugs, the “specific evidence” should include records, admissions, sampling or live

testimony. United States v. Shonubi, 998 F.2d 84, 89-90 (2d Cir, 1993) (amount of

heroin for sentencing invalidly calculated simply by multiplying amount from

defendant’s last trip by the number of trips), appeal after remand, 103 F.3d 1085,

1092-97 (2d Cir. 1997) (rejecting inference that each prior trip contained the same

quantity as was seized in final trip).

The Tenth Circuit, which appraises drug quantity calculations for plain error,

nonetheless evaluates the underlying methodology on its independent merits—

likewise using a heightened standard of review. 34

Instead of an independent review, the D.C. Circuit applied a less rigorous clear

error yardstick to assess the lower court’s methodology. 35 That is the path used by

the Seventh Circuit, which follows a clear error standard in reviewing sentencing

courts’ methodologies. 36

The Seventh Circuit’s approach has not been uniform, for it has concluded that

“whether the district court followed the proper procedures in imposing sentence is a

question of law that [is] reviewed de novo.” 37

Similarly, the Third and Eighth

United States v. Smith, 705 F.3d 1268, 1274 (10th Cir. 2013) (“We review the

factual findings supporting this determination for clear error, but review the

ultimate determination of relevant conduct de novo”); United States v. Wacker, 72

F.3d 1453, 1477 (10th Cir. 1995) (in assessing drug quantity “[w]e review the

district court's interpretation and application of the Sentencing Guidelines de

novo.”); United States v. Williamson, 53 F.3d 1500, 1528 (10th Cir. 1995)

(methodology reviewed “on the merits” with factual findings reviewed for clear

error).

Tucker, 12 F.4th at 828.

United States v. Young, 863 F.3d 685, 688 (7th Cir. 2017).

Young, 863 F.3d at 688 (citing United States v. Mendoza, 510 F.3d 749, 754 (7th

Cir. 2007)). See also United States v. Hill, 563 F.3d 572, 577 (7th Cir. 2009)

(U.S.S.G. § 3B1.2 Role in the Offense; “We review the district court's construction

of a guideline and its methodology in applying the guideline de novo, as these

present legal questions.”). But see United States v. Acosta, 534 F.3d 578, 584 (7th

Cir. 2008) (no clear error in method to estimate drug quantity that erred on the

low side).

Circuits follow the highly deferential “clear error” standard, with no particular focus

on the underlying methodology used to determine quantity. 38

A clear inter-circuit split exists in the standards of review to assess the

reliability of district judges’ methodologies used to determine drug quantity under

the Sentencing Guidelines, under which federal sentencing decisions “are anchored

….’” The “district courts must begin their analysis with the Guidelines and remain

cognizant of them throughout the sentencing process;” and “[f]ailing to calculate the

correct Guidelines range constitutes procedural error.” 39

[R]egardless of length, a sentence based on an error of law is per se

unreasonable.” 40 Because the methodology chosen to ascertain drug quantity is at

least a mixed question of law and fact, if not a pure question of law, this split presents

a serious concern in the post-Booker era of reasonableness review of sentencing

determinations. 41 The Court should resolve the inter-circuit conflict. And it should

disallow using a needlessly deferential standard of review to assess the reliability of

methodologies devised to resolve contested issues of Relevant Conduct in narcotics

See, e.g., United States v. Madison, 863 F.3d 1001, 1005 (8th Cir. 2017); United

States v. Moralez, 808 F.3d 362, 369 (8th Cir. 2015); United States v. Freeman, 763

F.3d 322, 337 (3rd Cir. 2014).

Peugh v. United States, 569 U.S. 530, 541 (2013) (emphasis original) (citations

omitted).

United States v. Price, 409 F.3d 436, 442 (D.C. Cir. 2005); United States v. Crosby,

397 F.3d 103, 114 (2d Cir. 2005), abrogated on other grounds by United States v.

Fagans, 406 F.3d 138, 142 (2d Cir. 2005).

United States v. Booker, 543 U.S. 220 (2005).

prosecutions. A three-judge appellate panel with a breadth of experience is fully

capable of reviewing sentencing transcripts and materials de novo, and perhaps

better situated for that role.

Using the highly deferential clear error standard to adjudicate a challenge to

the process used to establish offenders’ placement in the Sentencing Guidelines

disserves the basis for resorting to that less rigorous standard of review, which

recognizes that sentencing courts’ familiarity with the record should be accorded

deference. However, the process by which sentencing judges first get to the point of

calculating the drug weight demands a more searching review, particularly in

circumstances such as this case. If one looks at the reasons why appellate courts defer

to trial judges, such as the ability to better make credibility decisions, but one instead

is questioning the reasonableness of speculative assumptions that are part of the

methodology, the reason for such deference would be absent.

The Government may seek to avoid this Court’s interposition by invoking the

doctrine of sentencing guidelines abstention articulated in Braxton v. United States. 42

However, when “‘[t]he Circuit Courts have divided . . . [s]uch division is a traditional

ground for certiorari.’” 43 This case does not challenge any Sentencing Commission

policy nor raise any issue bearing on its expertise. Instead, this petition focuses on

500 U.S. 344 (1991).

Wheaton Coll. v. Burwell, 573 U.S. 958, 134 S. Ct. 2806, 2807 (2014) (quoted in

Dawinder S. Sidhu, “Sentencing Guidelines Abstention” at 36 & n. 120

(manuscript) (March 15, 2022) (available at: https://ssrn.com/abstract=3950703)

(last accessed April 26, 2022)); Sup. Ct. Rule 10.

resolving the proper standard of review of district courts’ approaches in establishing

the amounts of narcotics that factor into determining Relevant Conduct. The

Commission is not positioned to provide a binding interpretation of that issue and the

doctrine of abstention therefore is inapplicable. 44

For the foregoing reasons, this Court should grant the petition and resolve the

conflict.

ARGUMENT AND REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT

Standards of review have special pertinence in sentencing. 45 Narcotics cases

are a quarter of the workload reported to the Sentencing Commission. 46 This Court

should reconcile the inter-circuit split by requiring de novo appellate review of claims

that unreliable practices marred a Relevant Conduct drug quantity determination.

See, e.g., Koon v. United States, 515 U.S. 1190 (1995) (rejecting Government’s

opposition to petition for certiorari seeking to clarify standard of review of

sentencing departure decisions), later op., 518 U.S. 81 (1996).

See, e.g., Jonathan S. Masur & Lisa Larrimore Ouellette, Deference Mistakes, 82

U. CHI. L. REV 643, 657-658, 661 (2015) (citing decisions); Joshua B. Fischman &

Max M. Schanzenbach, Do Standards of Review Matter? The Case of Federal

Criminal Sentencing, 40 J. LEGAL STUD. 405, 409, 431 (2011).

United States Sentencing Commission, “Federal Offenders by Type of Crime,”

FISCAL YEAR 2020 OVERVIEW OF FEDERAL CRIMINAL CASES at 4 (April 2021)

(available

https://www.ussc.gov/sites/default/files/pdf/research-andpublications/research-publications/2021/FY20_Overview_Federal_Criminal_

Cases.pdf) (last accessed October 20, 2021).

There is an inter-circuit split on the proper standard of review

of the methodology to determine drug quantity findings.

Just as there is a due process right not to be sentenced based on

“misinformation of constitutional magnitude,” 47 a defendant has a right under the

Sentencing Guidelines to be sentenced based on reliable information. Simply put, a

finding in a sentencing “must be based on evidence before the court . . . and not on

speculation or hypothesis.” 48 And yet, as discussed above, there is a multi-circuit split

in how judges’ approaches to determining the amounts of narcotics comprising

offenders’ Relevant Conduct are reviewed.

a. Applying a uniform de novo standard of review to evaluate the process used

to determine drug quantity is not unorthodox: several appellate courts that apply

clear error review when assessing methodologies devised in narcotics cases apply a

stricter de novo review to methodologies of calculating “loss” under the fraud-related

sentencing guidelines. For instance, the Third Circuit recently undertook plenary

review to remand a sentence for selling counterfeit rare coins because the

methodology of determining the fraud loss was flawed. 49 The Seventh Circuit also

United States v. (Forrest) Tucker, 404 U.S. 443, 447 (1972).

United States v. Moore, 666 F.3d 313, 322 (4th Cir. 2012); see also United States

v. Bradley, 628 F.3d 394, 400 (7th Cir. 2010) (“Sentencing judges necessarily have

discretion to draw conclusions about the testimony given and evidence introduced

at sentencing, but due process requires that sentencing determinations be based

on reliable evidence, not speculation or unfounded allegations.”) (cleaned up).

United States v. Kirschner, 995 F.3d 327, 333-38 (3d Cir. 2021).

reviews the methodology to derive fraud loss de novo. 50 And Eighth Circuit precedent

is similar. 51

b. Those Circuits that apply de novo review to narcotics methodologies are

equally consistent in reviewing fraud loss methodologies. The First Circuit employs

de novo review in such cases. 52 The Fifth Circuit does, too. 53 And the Tenth Circuit

reviews loss calculation methodologies de novo and the actual calculations for clear

error. 54 (Although the Sixth Circuit does not appear to have addressed the standard

United States v. Senn, 129 F.3d 886, 898 (7th Cir. 1997) (cleaned up).

United States v. Hartstein, 500 F.3d 790, 795 (8th Cir. 2007) (mail fraud and

account fraud, 18 U.S.C. §§ 1029(a)(2), 1343) (citing United States v. Alfonso, 479

F.3d 570, 572-74 (8th Cir. 2007) (wire fraud, 18 U.S.C. § 1343).

United States v. Foley, 783 F.3d 7, 23 (1st Cir. 2015) (distinguishing “the district

court's calculation methodology” from “its mathematical application of this

methodology” to conclude de novo review appropriate; wire fraud, 18 U.S.C.

§ 1343; money laundering, id. § 1957).

See, e.g., United States v. Ainabe 938 F.3d 685, 692 (5th Cir. 2019) (review of

methodology used to determine fraud loss is de novo because “‘because that is an

application of the guidelines. . . .’”) (U.S.S.G. § 2B1.1(b)(1)(J)); United States v.

Harris, 821 F.3d 589, 601 (5th Cir. 2016) (wire fraud, 18 U.S.C. § 1343) (citations

omitted); United States v. Klein, 543 F.3d 206, 214 (5th Cir. 2008) (mail fraud,

18 U.S.C. § 1341; healthcare fraud, 18 U.S.C. § 1347).

United States v. Maynard, 984 F.3d 948, 956 (10th Cir 2020) (failure to pay

corporate payroll taxes; stealing or embezzling employee benefit plan and health

care contributions, 18 U.S.C. §§ 371, 664, 669) (citing United States v. Snow, 663

F.3d 1156, 1160 (10th Cir. 2011) (wire fraud and conspiracy, 18 U.S.C. §§ 1343,

1349)).

of reviewing drug quantity calculations, it reviews fraud loss methodologies de

novo. 55)

In sum, those courts have reviewed de novo the integrity of the process used to

quantify fraud loss from the evidentiary record; the resulting factual findings then

were reviewed for clear error—as Tucker urged be applied to this narcotics case.

There is no reason to differentiate the core concepts or have a double standard for

narcotics cases; in each instance a sentencing court is seeking to quantify a Base

Offense Number based on empirical evidence and rational inferences.

The proper standard of review presents a serious concern under any

circumstances in an era of reasonableness review of sentencing determinations. 56

Improperly calculating the Guidelines range is a “significant procedural error.” 57 A

three-judge panel with a breadth of experience is more capable than a single judge of

reviewing the sentencing proceedings de novo to determine whether a sentence rested

on a reliable, objectively valid methodology.

II.

A deferential standard of review is not well-suited for assessing

a sentencing court’s choice of methodologies.

Granting great deference to the process chosen by only one person—the trial

judge—invites error, particularly in sentencings, where the standard of proof is only

United States v. Riccardi, 989 F.3d 476, 481 (6th Cir. 2021) (stealing mail as a

postal employee; 18 U.S.C. § 1709); United States v. Chaney, 921 F.3d 572, 598

(6th Cir. 2019) (health care fraud and conspiracy, 18 U.S.C. §§ 1347, 1349).

Gall v. United States, 552 U.S. 38, 49-51 (2007); Booker, 543 U.S. at 261-62.

Gall, 552 U.S. at 51.

a preponderance of evidence. 58 A standard of de novo review is necessary to determine

whether district judges properly created a process to calculate drug quantity.

An appellate panel’s competence to evaluate a district judge’s factual

findings flowing from a flawed methodology “‘may be less a limitation than a source

of institutional advantage.’” 59 “[I]t is perhaps not too much to claim for the appellate

courts that in their supervisory function they may have the advantage of a wider

perspective” than a district judge. 60 “[M]ultiple members of the appellate panel tend

to reduce prejudice that may influence a judge’s decision were [s]he sitting alone.” 61

“[F]requently recurring fact patterns warrant specific judicial norm

elaboration rather than being left to the trier of fact under a more general

standard.” 62

The record here affords a good example of why requiring uniform

United States v. McDowell, 713 F.3d 571, 576 (10th Cir. 2013). See also

SENTENCING GUIDELINES MANUAL, § 6A1.3(a), § 6A1.3 cmt. (information used in

sentencing must have “sufficient indicia of reliability….”).

Michael M. O’Hear, Appellate Review of Sentences: Reconsidering Deference, 51

WM. & MARY L. REV. 2123, 2143 (2010) (citations omitted). See also Note, More

Than a Formality: The Case for Meaningful Substantive Reasonableness Review,

127 HARV. L. REV. 951, 967 (2014).

Appellate Review of Sentences: A Symposium at the Judicial Conference of the

United States Court of Appeals for the Second Circuit, 32 F.R.D. 249, 275 (1962)

(statement of Sobeloff, C.J.).

Carissa Byrne Hessick & F. Andrew Hessick, Appellate Review of Sentencing

Decisions, 60 ALA. L. REV. 1, 32 n.151 (2008) (citing Harry T. Edwards, The Effects

of Collegiality on Judicial Decision Making, 151 U. PA. L. REV. 1639, 1647

(2003)).

Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229, 267

(1985).

standard of de novo review is appropriate. The evidence of Tucker’s transactions with

Fields was quite thin. The government submitted scant tangible and no electronic

evidence, admissions, and/or incisive corroboration from reliable insider witnesses to

justify the extrapolation indulged in by the sentencing court and it was speculative

to postulate that Tucker consistently and regularly was selling heroin, let alone a

uniform amount of it, sufficient to conclude that he had trafficked 75 grams of

heroin. 63

c. The absence of a uniform and coherent process of reviewing sentences

invites a return to the dysfunctional practices that led to sentencing reform

legislation in the first place. 64 An independent appellate review of the reliability of

the sentencing methodology—an “evaluative determination” 65—is necessary to

“maintain control of, and to clarify the legal principles” 66 and through that process

“unify precedent.” 67 In addition,“[r]egarding certain largely factual questions in some

areas of the law, the stakes—in terms of impact on future cases and future conduct—

United States v. Hardin, 437 F.3d at 471 (de novo review required of “whether the

guidelines are correctly applied — whether bones [an unusable byproduct of

methamphetamine production] are included under [U.S.S.G.] § 2D1.1”).

Nancy Gertner, Apprendi/Booker and Anemic Appellate Review, 99 N.C. L. REV.

1369, 1376 & n.30 (2021).

Randall H. Warner, All Mixed Up about Mixed Questions, 7 J. APP. PRAC. &

PROCESS 101, 143-144 (2005).

Ornelas v. United States, 517 U.S. 690, 698 (1996).

Ornelas, 517 U.S.at 698. See also Cooper Indus., Inc. v. Leatherman Tool Group,

Inc., 532 U.S. 424, 436 (2001) (de novo review “helps to assure the uniform general

treatment of similarly situated persons…”).

are too great to entrust them finally to the judgment of the trier of fact.” 68 “Providing

clear legal guidance is particularly important in the area of sentencing, not only

because it involves important interests like liberty, but also because sentencing

affects so many people.” 69

d. The deferential “clearly erroneous” standard of review employed by the

Court of Appeals below is based on “the importance of first-hand observation.” 70 Here,

however, we are speaking of whether the methodology was sufficiently reliable to

justify the facts ultimately found—not whether the Trial Judge more likely than not

made correct factual findings by using a reasonable methodology.

III.

This case is a good example of why this Court should resolve the

circuit conflict.

As previously discussed, the D.C. Circuit applied a clear error standard to

review the reliability of the underlying sentencing methodology but gave no

explanation of why independent appellate review would be unfitting. 71 Yet the

standard of review can matter. A de novo review of the methodology used here likely

would have led to a different result. So much is confirmed by examining

Bose Corp. v. Consumers Union, 466 U.S. 485, 501 n.17 (1984). See also Salve

Regina College v. Russell, 499 U.S. 225, 231-233 (1991) (discussing appellate

courts’ “institutional advantages” in giving legal guidance).

Hessick & Hessick, 60 ALA. L. REV. at 33.

Harry T. Edwards & Linda A. Elliott, FEDERAL STANDARDS OF REVIEW—REVIEW OF

DISTRICT COURT DECISIONS AND AGENCY ACTIONS 13 (2007) (cleaned up). Accord

Hessick & Hessick, 60 ALA. L. REV. at 14.

Tucker, 12 F.4th at 828.

representative decisions in Circuits which employ that more demanding standard of

review and have remanded sentences based on equally flawed methodologies.

a. The First Circuit’s United States v. Candelaria-Silva decision involved a

lower-echelon defendant within an “immense” heroin conspiracy network who

ultimately successfully challenged the imposition of a much higher drug quantity

than the record supported. 72 The trial judge’s assumptions were tainted by “ignoring

troublesome evidentiary gaps”– including the appellant’s absence from detailed

ledgers maintained by the organization. 73

In remanding the sentence, the court of appeals emphasized that “[w]e have

stated on previous occasions that where, as here, a drug quantity determination relies

on multiples of averages or extrapolations, the sentencing court must be mindful of

‘the potential for error where one conclusory estimate serves as the multiplier for

another (i.e., average number of transactions per hour and average operating hours

per day)[, which] may undermine the reasonable reliability essential to a fair

sentencing system.’” 74

714 F.3d 651 (1st Cir. 2013).

Candelaria-Silva, 714 F.3d at 656-658.

Id., 714 F.3d at 658.

Ultimately the Candelaria-Silva appellant’s sentence was reduced from 360

months to 235 months. Similar results appear in First Circuit decisions. 75

Here, the district judge’s error was based on a similarly shaky methodology,

one influenced primarily by Tucker’s presence near the barbershop than by anyone’s

testimony or objective evidence concerning what (if anything) he was selling in league

with Fields, and which was further marred by a failing to appreciate the

insignificance of the failed and exiguous street “buys.” 76

b. A series of Ninth Circuit decisions is also instructive. In United States v.

Culps, 77 the sentencing judge estimated an average drug quantity of 60,250

transactions based on nine “controlled buys.” This approach, which involved three

times the number of consummated “buys” here, was found by de novo review to be

Docket, United States v. Santiago-Lugo et al, 95-cr-029 (D.P.R., Mar. 29, 2016)

([3783]). Similarly, the sentence appealed from in United States v. Marquez was

vacated because the extrapolation was not “based on a known quantity or readily

calculable number of transactions involving clearly established or conservatively

estimated quantities.” 699 F.3d 556, 561-562 (1st Cir. 2012). On remand, the

appellant’s sentence was reduced from 121 months to 100 months. Docket, United

States v. Marquez, 10-cr-10283 (D. Mass., Apr. 27, 2016) ([81]). Previously, in

United States v. Sepulveda, the court of appeals rejected using a midpoint between

four ounces and a kilogram to determine drug quantity for two appellants, whose

sentences were remanded. 15 F.3d 1161, 1197 (1st Cir. 1993). A PACER search

of the district court docket was unavailing, as the paper files had been sent to the

Archives. United States v. Sepulveda, 90-cr-13 (D.N.H.).

Mere presence in the vicinity of drug transactions and acquaintance to persons

making such transactions is insufficient to establish guilt of a conspiracy. United

States v. Pardo, 636 F.3d 535, 549-50 (D.C. Cir. 1980). This proposition is just as

pertinent to sentencing. See United States v. Bagcho, 923 F.3d 1131, 1138-40 (D.C.

Cir. 2019) (remanding finding of constructive possession of firearm in narcotics

dealings; citing Pardo).

300 F.3d 1069 (9th Cir. 2002).

statistically and legally unreliable and warranted a remand. 78 The district court then

resentenced Culps, lowering his term of incarceration from 88 months to 41 months. 79

The reasoning underlying Culps should apply here, where the record of Tucker’s sales

of heroin was equally sparse.

Subsequently, in United States v. Kilby 80 the district court had estimated sales

of “Foxy” tablets with no evidence of the tablets being the same approximate size and

overlooked

the

varying

weights

recovered

samples.

Although

reliable

approximations “based on facts specific to the defendant’s case” can be acceptable, the

court of appeals recognized, its de novo review concluded that the approximation was

unreliable and remanded for resentencing, after which the appellant’s sentence was

shortened by 24 months. 81 And here, of course, there was no proof of Tucker regularly

offering and selling any quantity of heroin (or other drugs) obtained from Fields. The

gauzy films offered by the prosecution were fluff because the agents admitted they

had no idea what if anything illicit Tucker was doing.

In another Ninth Circuit decision, United States v. Chase, 82 the appellate court

exercised de novo review to reject methodologies that entailed unreliable estimates of

manufacturing glassware capacities, coupled with an unreasonable multiplier

Culps, 300 F.3d at 1076 (citing cases).

Docket, United States v. Culps, 99-cr-2070 (E.D. Wash., Nov. 21,2002) ([146]).

443 F.3d 1135 (9th Cir. 2006).

Kilby, 443 F.3d at 1141-42; Docket, United States v. Kilby, 04-cr-144 (D. Id., Aug.

8, 2006) ([47, 65]) (96 months reduced to 72 months).

499 F.3d 1061 (9th Cir. 2007).

analysis. The district court had assumed that Chase had cooked 100 boxes of

pseudoephedrine once per month for over eight months. However, the court of appeals

pointed out that record contained “no reliable evidentiary basis for any of the pivotal

assumptions in the drug quantity approximation,” which led to a 21-month shorter

term of imprisonment following remand. 83

Here, where the D.C. Circuit followed a clear error review, there was no

quantifiable evidence of Tucker’s making more than a single controlled street-level

“buy”—no admissions, ledgers, wiretaps, or insider testimony. Nor were the

unconsummated “buys” informative of his making actual sales on a periodic basis of

heroin or any quantity of any other drug whose weight could be converted. (Again: it

was speculative in the extreme to factor unconsummated “buys” into the process and

thereby deduce that five half-gram sales of heroin per week were consummated.)

The appeal in United States v. Forrester 84 also prompted a remand. The court

of appeals explained that “when there are two ‘equally good measures’ for making a

calculation under the guidelines, a court must select the one ‘bringing the less

punishment[.]’” 85 Although the sentencing court’s failure to make explicit findings

concerning the quantity prompted the remand, the appellate court expressed

discomfiture with any future sentence that rested on a higher quantity, absent proof

Chase, 499 F.3d at 1068-70; Docket, United States v. Chase, 03-cr-028 (D. Mt., Apr.

10, 2008) ([148, 167]).

616 F.3d 929 (9th Cir. 2010).

Id. at 949 (quoting Chase, 499 F.3d at 1069; and United States v. Hardy, 289 F.3d

608, 614 (9th Cir. 2002)).

that was derived from “the most reliable method available.” 86 Yet here the trial court

chose an unreliable method to estimate actual sales by Petitioner that nobody had

attested to or admitted, that was not supported by any reliable record evidence, and

that was further tainted by considering the isolated unsuccessful street-level “buys.”

c. The two decisions cited by the D.C. Circuit to support its application of clear

error review are inapposite. They present different scenarios. Their logic supports

Petitioner’s contention that de novo review should be used to assess a questioned

methodology in determining Relevant Conduct.

1. The First Circuit opinion in United States v. Correa-Alicea 87 stated that it

can be reasonable to extrapolate from two controlled “buys” a “‘conservative estimate

of one transaction a day’” over time. 88 Sometimes that can be accurate—but it

depends on whether a reliable process was used to derive the estimate. There,

“[a]ccording to the testimony of Ortiz-Cruz and Colón-González, long-time residents

of the housing project [and testifying cooperators], Correa-Alicea was ‘in charge’ of

the drug point and was involved in the conspiracy from November 2005 until

November 2006. The drug point operated for at least sixteen hours every day, and a

large number of people visited the drug point daily.” 89 Thus, considering that the

Forrester, 592 F.3d at 991. Following remand, the offender’s sentence was pruned

from 320 to 264 months. Docket, United States v. Alba, 03-cr-3177 (S.D. Cal., May

6, 2011) ([1231]).

585 F.3d 484 (1st Cir. 2009) (cited in Tucker, 12 F.4th at 829).

Tucker, 12 F.4th at 829 (quoting Correa-Alicea, 585 F.3d at 491).

Correa-Alicea, 585 F.3d at 490.

district court’s estimate went appreciably below the lowest extrapolation, the “finding

as to drug quantity was not a mere ‘hunch or intuition;’” rather, “[t]he estimate of one

transaction per day, or 365 transactions per year, is highly conservative in light of

testimony that the drug point operated for sixteen to seventeen hours per day, 365

days per year, and had a large number of customers daily. 90

Notably, Correia-Alicea eschewed addressing the methodology because there

was straightforward testimony from the cooperators and the controlled buys were

sufficient for sampling purposes. 91 Hence the decision does not detract from Tucker’s

contention that the record was so sparse as to support any rational process to

appraise the drug quantity that was used to derive Relevant Conduct in his case.

Moreover, the trial judge’s approach to determining Relevant Conduct here

differs significantly from Correia—Tucker oversaw nothing. He was a street-level

dealer whom the sentencing judge found occasionally dealt with Fields. No

cooperators described Petitioner’s dealings in contraband and there was no greater

set of transactions against which the single consummated controlled “buy” could be

measured and used as a reliable springboard for extrapolation. Hence the

extrapolation used to set his Relevant Conduct was unsupportable.

Id. at 585 F.3d at 490-91 (citations omitted).

Id. at 489-90.

Nothing in United States v. Block 92 suggests that the appellants had

pressed the Seventh Circuit to embrace de novo review of the drug quantity

methodology. 93

Furthermore, Block involved a palpably valid methodology. There, a drug

trafficking organization’s “kingpin” pled guilty and made damaging admissions about

the operation’s dealings; “‘[n]o one was more qualified than [the defendant] himself

to put a number on the amounts of cocaine he was purchasing and re-selling, and [the

agent] was simply recounting what [the defendant] told him in this regard.’” 94

Moreover, the defendant’s girlfriend and another higher-up defendant had supplied

detailed corroboration of the leader’s concessions. 95 Nor did any of the appellants

claim to have been small players in the organization. 96

Petitioner Tucker was situated nowhere near the Block appellants’ level in the

organizational hierarchy. As the sentencing dialogue recognized, Tucker was a street

seller who occasionally dealt with Fields. Even then, the notion that he made periodic

sales on any regular weekly basis, as the district court concluded, was fraught with

undue speculation.

705 F.3d 755, 760–61 (7th Cir. 2013) (cited in Tucker, 12 F.4th at 829).

Block, 705 F.3d at 759 (citing United States v. Morales, 655 F.3d 608, 635 (7th Cir.

2011)).

Block, 705 F.3d at 760 (cleaned up).

Id., 705 F.3d at 760-61.

Id. at 762.

IV.

This case is a good vehicle for review.

The doctrine of sentencing guidelines abstention does not apply to this case.

The question presented is within the judiciary’s exclusive province: this Court serves

as the ultimate determinant of federal criminal procedure and is uniquely situated to

provide uniformity to the federal courts. The Sentencing Commission lacks such

authority under any constitutional or statutory provision. Nothing in the Sentencing

Reform Act suggests that Congress intended for the Court to surrender its traditional

role of resolving inter-circuit conflicts to the Commission. 97 If anything, instructive

precedent can be derived from Koon v. United States, which this Court accepted to

resolve an inter-circuit split over the standard of review governing appeals from

departures from Guidelines sentencing ranges. 98

The legal issue, in turn, is discrete and is cleanly presented. The underlying

record is well-developed and uncomplicated. Petitioner’s role in the underlying case

was at a low level and the material facts necessary for review are not extensive. If

anything, those circumstances that frequently feature in narcotics-based Relevant

Conduct sentencing controversies are not present; the government presented no

wiretaps or confessions from Petitioner that were informative of his dealings. Its few

photographs of him were widely separated over time and were not informative of

what he was marketing and what sales he was making. It seized no appreciable

quantities of narcotics or any cash from Petitioner. And the other evidence it

Sidhu, “Sentencing Guidelines Abstention” at 28, 43, 48-49 (manuscript).

Koon, 518 U.S. at 91.

quantities of narcotics or any cash from Petitioner. And the other evidence it

presented was of equally limited utility, as the cooperating witness shed no light on

what types and quantities of drugs Petitioner supposedly marketed.

Nor do any significant factual disputes exist over the organization and

components of the district judge’s approach to assess Petitioner’s Relevant Conduct:

the judge explained how he reached the conclusions that underlay Petitioner’s Base

Offense Level. Petitioner contends that by using unsupported extrapolations and

inferences that the procedure used to calculate his all-important Base Offense Level

was and is legally unjustifiable. Use of the de novo standard in these circumstances

would be outcome-determinative: if the methodology is unsupportable, then the facts

derived from its application perforce should also founder. Had this appeal arisen in a

circuit that applies de novo review to the Relevant Conduct determination, that

review would have found error in how Petitioner’s Relevant Conduct was calculated

and his sentence quite likely would have been remanded.

CONCLUSION

The Court should grant this Petition and determine a uniform standard to

review district courts’ methodologies used in federal narcotics prosecutions to

establish offenders’ Relevant Conduct under the Sentencing Guidelines.

Respectfully submitted,

/s/Stephen C. Leckar*

Stephen C. Leckar

Counsel of Record

(Appointed Under the Criminal

Justice Act by the Court of Appeals)

Kalbian Hagerty LLP

888-17th St., NW, 12th Floor

Washington, D.C. 20036

(202) 742-4242

(202) 223-6625 (fax)

sleckar@kalbianhagerty.com

Attorneys for Petitioner

APPENDIX

TABLE OF CONTENTS

Page

Judgment of the

United States Court of Appeals

For the District of Colombia Circuit

entered September 3, 2021 ............................................................................... 1a

Opinion of the

United States Court of Appeals

For the District of Colombia Circuit

entered September 3, 2021 ............................................................................... 2a

Amended Judgment in a Criminal Case of the

United States District Court

District of Colombia

entered November 12, 2019 ............................................................................ 39a

Order of

United States Court of Appeals

For the District of Colombia Circuit

Re: Denying Petition for Panel Rehearing

entered January 13, 2022 ............................................................................... 46a

Order of

United States Court of Appeals

For the District of Colombia Circuit

Re: Denying Petitions for Rehearing en banc

entered January 13, 2022 ............................................................................... 47a

Excerpts of Transcript of Sentencing Hearing before

The Honorable Amit P. Mehta

on June 14, 2019 ............................................................................................. 48a

USCA Case #19-3042

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Filed: 09/03/2021

Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 19-3042

September Term, 2021

FILED ON: SEPTEMBER 3, 2021

UNITED STATES OF AMERICA,

APPELLEE

LONNELL TUCKER,

APPELLANT

Consolidated with 19-3043, 19-3078

Appeals from the United States District Court

for the District of Columbia

(No. 1:18-cr-00267-6)

(No. 1:18-cr-00267-1)

(No. 1:18-cr-00267-2)

Before: KATSAS, RAO, and WALKER, Circuit Judges

JUDGMENT

These causes came on to be heard on the record on appeal from the United States District

Court for the District of Columbia and were argued by counsel. On consideration thereof, it is

ORDERED and ADJUDGED that the District Court’s judgments of conviction be affirmed,

in accordance with the opinion of the court filed herein this date.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

Date: September 3, 2021

Opinion Per Curiam

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 2021

Decided September 3, 2021

No. 19-3042

UNITED STATES OF AMERICA,

APPELLEE

LONNELL TUCKER,

APPELLANT

Consolidated with 19-3043, 19-3078

Appeals from the United States District Court

for the District of Columbia

(No. 1:18-cr-00267-1)

(No. 1:18-cr-00267-2)

(No. 1:18-cr-00267-6)

Paul S. Rosenzweig, appointed by the court, argued the

cause for appellant Anthony Fields. Amelia Schmidt, appointed

by the court, argued the cause for appellant Abdul Samuels.

With her on the briefs was Matthew G. Kaiser, appointed by

the court. Stephen C. Leckar, appointed by the court, argued

the cause for appellant Lonnell Tucker.

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Daniel J. Lenerz, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Elizabeth

Trosman, Chrisellen R. Kolb, and Gregory P. Rosen, Assistant

U.S. Attorneys.

Before: KATSAS, RAO, and WALKER, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: Appellants Anthony Fields, Abdul Samuels,

and Lonnell Tucker were convicted on several drug- and

firearm-related offenses. Each appellant challenges his

convictions, and Samuels also challenges his sentence. We

affirm.

In May 2018, a grand jury indicted Fields, Samuels,

Tucker, and three other individuals on several charges related

to an alleged drug-dealing conspiracy. The indictment

stemmed from an investigation by the Bureau of Alcohol,

Tobacco, Firearms and Explosives (ATF) of drug activity at

Next Level Cuts, a barbershop in the District of Columbia.

Much of the government’s evidence came from searches

in the months preceding the indictment. During a traffic stop

in November 2017, officers found what appeared to be a drug

ledger, approximately $9,000, and drug paraphernalia in

Fields’s vehicle. The ATF executed a search warrant on the

barbershop three months later. In a suite above the barbershop,

agents found cash, firearms, more drug paraphernalia, and

large quantities of narcotics — heroin mixed with fentanyl,

PCP, Suboxone, and synthetic marijuana. In the same room,

they also found a document listing a medical appointment for

Fields and a receipt for a purchase made with his credit card.

A search of Fields’s home led to more drug ledgers, two of

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which listed “Foots” (i.e., Samuels). During the ensuing

searches of Samuels’s home, ATF agents found a shotgun, drug

paraphernalia, crack cocaine, marijuana, and synthetic

marijuana. During the search, Samuels admitted that he kept

the gun under his bed for protection.

Also central to the government’s case was testimony from

Byran Clark, a drug dealer who purportedly worked for Fields.

Clark testified that Fields ran a drug operation out of the

barbershop’s upstairs suite and that Samuels often acted as a

gatekeeper to the suite. He also reported that Tucker sold drugs

out of the barbershop and frequented the suite.

Five defendants proceeded to trial. One pleaded guilty

during the trial. The jury returned a mixed verdict as to the

other four. It acquitted one defendant on the sole charge

against him. It also acquitted Fields and Samuels on several

firearms- and narcotics-related charges. But it found Fields,

Samuels, and Tucker guilty of conspiracy to distribute and

possess with intent to distribute various narcotics. See 21

U.S.C. §§ 841, 846.1 It also found Fields guilty of possessing

with intent to distribute each of the narcotics alleged in the

conspiracy. Id. § 841(a). And it found Samuels guilty of

possessing with intent to distribute cocaine base, id., of

possessing synthetic marijuana, id. § 844, and of felony

possession of a firearm, 18 U.S.C. § 922(g).

The district court sentenced Fields to 192 months of

imprisonment, Samuels to 84 months of imprisonment, and

The jury found Fields guilty of conspiring to distribute PCP,

heroin, fentanyl, buprenorphine, marijuana, and synthetic marijuana.

Samuels was found guilty of conspiring to distribute heroin and

fentanyl. And Tucker was found guilty of conspiring to distribute

heroin.

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Tucker to 60 months of imprisonment. All three appealed and

collectively raise eight claims. We address each claim in turn.

We start with Fields, who contends that the police officers

who searched him and his vehicle in November 2017 lacked a

sufficient basis to conduct their traffic stop, violating the

Fourth Amendment. Prior to the search, officers conducting

undercover surveillance on a store known to sell drug

paraphernalia witnessed Fields exit the store. The officers

followed him. Fields drove to a nearby parking lot where

another person entered Fields’s car and then left after less than

two minutes. Suspecting a drug sale and wanting to remain

undercover, the officers called for backup and followed Fields

to another nearby parking lot.

When backup officers arrived, they observed Fields

illegally speed through that parking lot and then park. They

momentarily observed Fields before they approached him and

asked for his driver’s license and registration. “Due to his

nervous behavior and furtive movements,” they then asked

Fields to step out of his car and keep his hands away from his

pockets. App. 145.

Contrary to the instruction, Fields made “constant furtive

movements towards his pockets.” Id. So the backup officers

conducted a pat down, during which Fields spontaneously

uttered “that white powder in my pocket is a supplement.” Id.

The “white powder” was Mannitol, a known cutting agent for

cocaine. Id. at 146.

The backup officers also found $2,000 in cash and a ledger

on Fields. Inside his car, a K-9 found another $7,001 in cash

and multiple bottles with concealed “false bottoms containing

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trace amounts of white powder.” Id. Fields was subsequently

arrested.

Months later, in February 2018, ATF agents applied for a

search warrant of Fields’s car and the barbershop, which was

suspected of being a stash house. The 18-page application

included a paragraph about the November 2017 stop. After a

court granted the search warrant, ATF agents found additional

evidence of Fields’s drug trafficking.

Before trial, Fields challenged the legality of the vehicular

stop and search warrant. The district court held an evidentiary

hearing on the stop. Sergeant Chaney (one of the two

undercover officers) and Officer Haskett (one of the backup

officers) both testified. The court found their testimony

credible, concluded that there was probable cause to stop

Fields, and denied Fields’s suppression motion. The court also

denied Fields’s motion to suppress evidence from the February

2018 search.

As to the November 2017 stop, Fields challenges the

court’s findings that (1) the officers were credible, and

(2) there was probable cause for the stop. In addition, he

disputes the district court’s rejection of his argument regarding

the 2018 search, and he now adds an argument not raised in the

district court — that the evidence from the February 2018

search warrant should be suppressed as poisonous fruit of the

allegedly unlawful November 2017 stop.

As for the officers’ credibility, we review the district

court’s findings for clear error. United States v. Delaney, 955

F.3d 1077, 1081–82 (D.C. Cir. 2020). And we reverse “when

a district court credits exceedingly improbable testimony.”

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United States v. Delaney, 651 F.3d 15, 18 (2001) (cleaned up)

(emphasis added).

Fields offers three reasons for reversal.

First, he argues that because Officer Haskett did not

immediately stop him or take the necessary steps to cite him

for speeding, no speeding actually occurred. But that

conclusion does not follow from those facts. Officer Haskett

was taking steps to cite Fields for speeding until he discovered

evidence of a more serious crime — Fields’s drug trafficking.

It is therefore understandable the stop did not end how it began.

Second, Fields makes much of Sergeant Chaney’s

statement that he could not recall “[i]f there were any obvious

reasons for the stop.” App. 118. What Chaney actually said,

when asked if he could recall “[i]f there were any obvious

reasons for stop,” was: “I believe there were, but off the top of

my head, I couldn’t tell you what it was. Id. But in any event,

Sergeant Chaney was not even the officer who conducted the

stop. Cause for the stop here depends on what was seen by

Officer Haskett. And he recalled that Fields was speeding.

Third, Fields argues that Officer Haskett’s testimony that

Fields “was going a little fast,” id. at 133, is inconsistent with

his written report that Fields was “traveling at a high rate of

speed through the parking lot” and that officers approached

Fields to confront him “about speeding through the parking

lot,” id. at 145.

That argument, however, distorts Officer Haskett’s

testimony, which included at least five statements about

Fields’s driving:

(1) “I saw a silver Range Rover speeding through the

parking lot”;

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(2) Fields “was going a little fast for people to — for [him]

to react to people walking across the road”;

(3) “I already had probable cause to stop the vehicle

because of speeding”;

(4) “I don’t know the exact speed limit, but I do know that

he was driving faster than he should if people are

walking with their children and families shopping”; and

(5) Fields’s “[s]peed [was] greater than reasonable.”

Hr’g Tr. 9, 11, 31, ECF No. 246 (emphases added).

Contrary to Fields’s argument, there is no genuine

inconsistency between the written report and the totality of

Officer Haskett’s testimony. One can imagine a case where it

might matter whether a defendant was barely speeding or

dangerously speeding. But this is not that case. All that matters

is that Fields committed a traffic violation.

The district court did not err in finding the officers’

testimony credible. And we, like the district court, rely on it

for the next part of our analysis.

We review the district court’s determination that there was

a legal basis for the stop de novo. See Delaney, 955 F.3d at

1081–82.

Because Officer Haskett observed Fields speeding, he had

probable cause for the stop. It is well settled that a traffic stop

“is reasonable where the police have probable cause to believe

that a traffic violation has occurred.” Whren v. United States,

517 U.S. 806, 810 (1996); see also United States v. Sheffield,

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832 F.3d 296, 302 (D.C. Cir. 2016) (quoting Whren, 517 U.S.

at 810).2

We will not consider Fields’s argument that the speeding

was merely a pretextual justification for the stop because the

Supreme Court’s precedents “foreclose any argument that the

constitutional reasonableness of traffic stops depends on the

actual motivations of the individual officers involved.” Whren,

517 U.S. at 813. So too do this court’s precedents. See

Sheffield, 832 F.3d at 302–03.

We affirm the district court’s denial of Fields’s motion to

suppress.

Because Officer Haskett lawfully stopped Fields, there is

no poisonous tree from which poisonous fruit could fall.

Moreover, Fields forfeited his argument that the evidence from

the February 2018 search warrant should be suppressed as fruit

of the poisonous tree by not raising that argument in district

court. “[S]uppression arguments that are not presented to the

trial court are deemed waived and cannot be argued on appeal.”

United States v. Castle, 825 F.3d 625, 632 (D.C. Cir. 2016)

(cleaned up).

III

Fields next argues that the district court erred when it

denied his request to represent himself at trial. Fields had a

difficult relationship with his attorneys throughout the

prosecution. He fired his first attorney in 2018. Three months

Even without probable cause, an officer’s reasonable suspicion is

alone enough to justify a traffic stop. See Heien v. North Carolina,

574 U.S. 54, 60 (2014).

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before trial, he fired that attorney’s successor. And then, seven

days into trial, he tried to fire his third attorney. At that point,

over his co-defendants’ objections, Fields moved to represent

himself. When the district court asked why, Fields said his

attorney had not had time to learn the details of the case. He

also believed his attorney was not “aggressive enough” during

the trial. App. 361. The district court denied Fields’s request,

noting they were far along in the trial and Fields’s selfrepresentation at that juncture might harm his co-defendants.

Fields asks us to review the district court’s decision de

novo. But when a defendant’s request to represent himself is

made after trial has begun, we review the district court’s

decision for abuse of the court’s “considerable discretion.”

United States v. Noah, 130 F.3d 490, 498 (1st Cir. 1997); see

also United States v. Washington, 353 F.3d 42, 46 (D.C. Cir.

2004) (applying abuse of discretion standard).

“A person accused of a crime has an absolute right, under

the Sixth Amendment, to represent himself only if he asserts

that right before trial.” Washington, 353 F.3d at 46 (emphases

added). But if asserted after a trial begins, the right of selfrepresentation is qualified. It must yield to other interests when

those interests, such as harm to co-defendants, outweigh it. See

United States v. Bankoff, 613 F.3d 358, 373–74 (3d Cir. 2010)

(“However, after trial has commenced — i.e., at least after the

jury has been empaneled — the right of self-representation is

curtailed. In that context, district courts have discretion to deny

an untimely request to proceed pro se after weighing the

prejudice to the legitimate interests of the defendant against the

potential disruption of proceedings already in progress. How

this balance should be struck is ultimately within the sound

discretion of the district court, and we will review its decision

under a highly deferential abuse-of-discretion standard.”)

(cleaned up); United States v. Walker, 142 F.3d 103, 108 (2d

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Cir. 1998) (“Once a trial has begun, the defendant’s right to

self-representation is sharply curtailed. In cases in which the

request is made following the commencement of the trial, the

district judge must balance the prejudice to the legitimate

interests of the defendant against the potential disruption of

proceedings already in progress. On appeal, considerable

weight will be given to the district court’s assessment of this

balance.”) (cleaned up); see also United States v. Dougherty,

473 F.2d 1113, 1124 (D.C. Cir. 1972).

Citing this court’s concern in United States v. Washington

that a defendant’s request to make his own closing argument

may be an attempt to tell his story while evading crossexamination, see 353 F.3d at 46, Fields says, “At most,

Washington stands for the proposition that a defendant may be

denied self-representation when the request is an effort to game

the system.” Appellants’ Br. 42. We disagree. Although a

defendant’s attempt to manipulate the process is a sufficient

reason to deny a mid-trial request for self-representation, it is

not a necessary reason. Prejudice to co-defendants is also a

sufficient reason. So too is disruption of the proceedings.

Bankoff, 613 F.3d at 373.

Here, the district court stated it could not “ignore the

interests and the rights of the other defendants in this case.”

App. 367. It thoroughly explained to Fields his request would

“risk harming” his co-defendants, “whether it’s by a question

you ask; whether it’s by some objection you make or by an

objection you don’t make.” Id. The court then again noted its

duty to “not only consider your rights but the rights of these

four other men” and concluded “the rights of these four other

men will be jeopardized.” Id. Therefore, the court denied

Fields’s mid-trial request, “given the late juncture and the

amount of time that has passed in this case and where we find

ourselves in this case.” Id.

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“A trial involving a pro se defendant and co-defendants

who are assisted by counsel is pregnant with the possibility of

prejudice.” United States v. Veteto, 701 F.2d 136, 139 (11th

Cir. 1983) (cleaned up). In this case, the reasons to fear that

possibility — listed above by the district court — were

compelling. And the district court could have added to those

reasons Fields’s erratic trial attendance and unwarranted

hostility to fair proceedings. See, e.g., Appellee’s Supp. App.

422 (Fields: “I’m being railroaded here, man. I’m being

railroaded here. I said this from the beginning that we wasn’t

going to get no justice in this court.”); id. at 424 (Fields refused

to attend afternoon trial proceedings); App. 372 (Fields: “I’m

fighting the prosecution and I’m fighting you.” Court: “You’re

not fighting me.” Fields: “I’m definitely fighting you.”).

The district court did not abuse its considerable discretion

when it denied Fields’s request to represent himself.

Fields raises two ineffective-assistance-of-counsel claims

under Strickland v. Washington, 466 U.S. 668 (1984). To

prevail, he must show (1) “that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment” and (2) that the error

prejudiced his defense. Harrington v. Richter, 562 U.S. 86,

104 (2011) (cleaned up). “Even under de novo review, the

standard for judging counsel’s representation is a most

deferential one.” Id. at 105. We “must apply a strong

presumption that counsel’s representation was within the wide

range of reasonable professional assistance.” Id. at 104.

Because Fields’s claims are raised for the first time before

this Court, we have two options — remand for an evidentiary

hearing or reject them outright. The latter is permitted when

defendants present their claims in a vague or conclusory

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manner, when the trial record shows no deficient performance,

or when that record shows no prejudice. United States v.

Sitzmann, 893 F.3d 811, 831–32 (D.C. Cir. 2018) (per curiam);

United States v. Rashad, 331 F.3d 908, 909–10 (D.C. Cir.

2003).

Here, every paragraph of Fields’s brief — with the

possible exception of his third of five paragraphs, noted below

— is conclusory. And even when his arguments are at their

least conclusory, the trial record shows no deficient

performance or prejudice.

His first claim is laid out in four paragraphs. He begins in

paragraph one by alleging that the relationship with his

attorneys — recall that he fired the first two, and tried to fire

the third — was “broken” and that their investigations were not

“adequate”:

As we set forth above, Mr. Fields had a broken

relationship with each of his attorneys. With

respect to the first two, Mr. McCants and Mr.

Retureta, one aspect of their ineffectiveness is

already identified in the record but requires

further exploration on remand — namely, their

lack of adequate investigation.

Appellants’ Br. 48.

Then in paragraph two, Fields describes his version of the

evidence against him:

As the Court is aware from the recitation

elsewhere in this brief there was limited direct

evidence against Mr. Fields. No surveillance

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photos showed him engaging in drug

transactions. The only testimonial evidence

against him came from a cooperating witness

who, like all such witnesses, had mixed

motivation. Thus, the main ground for Mr.

Fields’ conviction lay in the Government’s

attempt to tie him to drugs found in a room on

the second floor above the barbershop. His

alleged constructive possession of the goods

found in that room was a critical piece of the

government’s case in chief.

Id.

Next, in paragraph three, Fields comes as close as he gets

to a non-conclusory argument. He alleges other people had

access to a room above the barbershop where he kept personal

items and instrumentalities of drug trafficking. And he faults

his initial attorneys for not finding them. But he never says

how many people had access, who they were, or why we should

believe that these unidentified people actually exist — aside

from Fields’s entirely self-serving “insiste[nce]” that they do:

And thus, negating that inference of

constructive possession was a vital component

of Mr. Fields’ defense. Throughout the time

prior to trial, Mr. Fields insisted that other

individuals also had keys to the room above the

barbershop — a fact which, if established,

would have afforded him the opportunity to

argue the insufficiency of the government’s

evidence attempting to attribute those drugs to

him. Yet, Mr. Fields’ initial attorney, Mr.

McCants, does not appear to have conducted the

investigation necessary to evaluate Fields’s

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requests. And Mr. Fields maintains that there is

no evidence that Mr. Retureta pursued that

investigation, either.

Id. at 48–49 (cleaned up).

Even assuming this, Fields’s least conclusory paragraph,

is sufficiently non-conclusory — which is doubtful — it was

neither deficient performance nor prejudicial for his counsel

not to investigate “other individuals” with “keys to the room

above the barbershop” where Fields kept cash, drugs, drug

paraphernalia, and personal items. Connecting others to the

room would not have eliminated the evidence connecting

Fields to the room. So even if his attorney had investigated the

unnamed “other individuals,” and even if they too were drug

dealers, the jury would have learned nothing more than the

unremarkable fact that Fields, a drug dealer, hung out and

shared space with other drug dealers. Cf. Trial Tr. 69, ECF No.

312 (“[D]espite the fact that you heard Mr. Fields in person and

on the phone again and again and again talk about how

everybody has got keys, everybody has access . . . , [m]ultiple

people can jointly have property in their constructive

possession. That’s the concept of both constructive possession

and a conspiracy. It’s teamwork.”).

Finally, in paragraph four, Fields ends his first claim where

he began — by repeating his conclusory claim that his

attorneys should have “conduct[ed] an investigation”:

As the Supreme Court recently put it:

“Counsel . . . has a duty to make reasonable

investigations or to make a reasonable decision

that

makes

particular

investigations

unnecessary. . . . In any ineffectiveness case, a

particular decision not to investigate must be

directly assessed for reasonableness in all the

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circumstances, applying a heavy measure of

deference to counsel’s judgments.” Here, no

assessment has been made as to the judgment of

counsel

failing

conduct

investigation — manifestly necessitating an

evidentiary inquiry.

Id. at 49 (cleaned up).

Fields’s other (conclusory) claim is laid out in one

paragraph — paragraph five. There he alleges his attorney did

not adequately cross-examine Clark, the government’s witness

who identified him as the leader of the conspiracy. But Fields

identifies no question his attorney should have asked that

would have impeached Clark or exculpated Fields. Instead,

Fields faults his attorney for not mentioning the absence of call

records reflecting Clark’s conversations with Fields. The

absence of evidence, however, is not evidence of absence. So

the absence of call records would not, in Fields’s words, have

“exploit[ed] inconsistencies” in Clarks’s testimony. Id. And

Fields fails to specify any other purported inconsistencies:

In addition, at an evidentiary hearing Mr. Fields

would also establish the reasons for his

dissatisfaction with the representation provided

by Ms. West, whose cross-examination of the

cooperating witness, Byran Clark, was in Mr.

Fields’ view inadequate. She failed to exploit

inconsistencies between the proffers that Mr.

Clark earlier had made to the government and

his sworn testimony. By way of example,

although Clark contended that he was in

frequent contact with Mr. Fields there were no

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call records — none — reflecting conversations

between them.

Id.

In short, Fields does little more than state his

“dissatisfaction” with his attorneys based on an investigation

and cross-examination he deems inadequate for the vaguest of

reasons and then conclude that this alone entitles him to relief.

But we reject conclusory claims that leave out specific reasons

for counsel’s deficient performance and prejudice under

Strickland. It is not nearly enough for Fields to simply state his

dissatisfaction and then conclude that his dissatisfaction

satisfied Strickland. We will therefore not remand Fields’s

ineffective-assistance-of-counsel claims for an evidentiary

hearing and instead reject those claims.3

We now turn to Samuels’s claims. He first contends that

his trial counsel, Joseph Conte, provided ineffective assistance.

Samuels primarily argues that Conte was ineffective under

Cuyler v. Sullivan, 446 U.S. 335 (1980), which requires the

defendant to show “(1) that his lawyer acted under an actual

conflict of interest” and (2) that the conflict caused “an actual

lapse in representation.” United States v. McGill, 815 F.3d

846, 943 (D.C. Cir. 2016) (cleaned up); see Cuyler, 446 U.S. at

349.

Because Cuyler relaxes Strickland’s prejudice

We also hold a non-conclusory argument would have fared no

better. With regard to Clark’s testimony, the performance of Fields’s

trial attorney was not deficient or prejudicial. She repeatedly elicited

purported inconsistencies between his pre-trial statements and trial

testimony, as did three attorneys for Fields’s co-defendants. Fields’s

attorney even made the point about the absence of text messages in

her closing argument.

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requirement, we are “reluctant to allow defendants to force

their ineffective assistance claims into the ‘actual conflict of

interest’ framework and thereby supplant the strict Strickland

standard.” United States v. Taylor, 139 F.3d 924, 930 (D.C.

Cir. 1998) (cleaned up). We thus closely scrutinize claims

under Cuyler.

Samuels argues that Conte was conflicted because his

daughter worked for the U.S. Attorney’s Office for the District

of Columbia, which prosecuted Samuels. Although Conte

mentioned his daughter’s job to the prosecutor, he informed

neither Samuels nor the district court. Shortly before

Samuels’s sentencing, the district court learned about the issue,

appointed new counsel, and ordered briefing. The court

concluded that Conte’s failure to disclose his daughter’s job

raised a potential conflict of interest, and it set an evidentiary

hearing on that issue. Later, the court granted the parties’ joint

motion to vacate the hearing without resolving the conflict

issue. Now on appeal, Samuels again contends that Conte had

a conflict of interest.

As discussed, we ordinarily remand “colorable and

previously unexplored claims of ineffective assistance” for

evidentiary hearings. United States v. Marshall, 946 F.3d 591,

596 (D.C. Cir. 2020) (cleaned up); see McGill, 815 F.3d at 942.

But remand is unwarranted where the record establishes that

counsel was not ineffective, where the appellant’s allegations

are vague and conclusory, or where the appellant fails to

identify an issue that “requires a determination of facts.”

Sitzmann, 893 F.3d at 832 (cleaned up). Moreover, our

standard for remand is blunted by “the strong presumption that

counsel made all significant decisions in the exercise of

reasonable professional judgment,” which extends to claims

under Cuyler. Taylor, 139 F.3d at 934 (cleaned up); see also

Burger v. Kemp, 483 U.S. 776, 784 (1987) (“[W]e generally

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presume that the lawyer is fully conscious of the overarching

duty of complete loyalty to his or her client.”).4

We assume that Conte was conflicted and resolve this

appeal under Cuyler’s second prong, which considers whether

the conflict led to an “actual lapse in representation.” McGill,

815 F.3d at 943 (cleaned up). To satisfy this standard, Samuels

must articulate a strategy that a reasonable, nonconflicted

defense counsel would have pursued. See United States v.

Gantt, 140 F.3d 249, 254 (D.C. Cir. 1998). The conflict must

have caused the failure to pursue this strategy, United States v.

Bruce, 89 F.3d 886, 896 (D.C. Cir. 1996), and must have

“significantly affected counsel’s performance . . . rendering the

We are skeptical that Samuels preserved his ineffective-assistance

claim. “The law in this circuit is that a claim of ineffective assistance

must be made in a motion for a new trial ‘when counsel changes prior

to appeal and when there is still a reasonable opportunity to challenge

a conviction in the District Court.’” United States v. Wood, 879 F.2d

927, 933 (D.C. Cir. 1989) (quoting United States v. Debango, 780

F.2d 81, 86 (D.C. Cir. 1986)). Before he appealed, Samuels received

new counsel and pressed a claim that his former counsel was

ineffective because of a conflict of interest. Moreover, after the

district court set an evidentiary hearing to explore the conflict issue,

Samuels — acting through his new counsel — affirmatively moved

to proceed without a hearing. Nevertheless, the government waived

any forfeiture (or waiver) argument by stipulating that it would not

raise that issue in the joint motion to vacate the evidentiary hearing.

See United States v. Layeni, 90 F.3d 514, 522 (D.C. Cir. 1996). The

government’s stipulation is not binding on us, see Weston v.

WMATA, 78 F.3d 682, 685 (D.C. Cir. 1996), and we have significant

concern with remanding now for a hearing that Samuels

affirmatively eschewed. But because we may reject Samuels’s

Cuyler claim on the present record, we accept the stipulation and

proceed to the merits.

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verdict unreliable, even though Strickland prejudice cannot be

shown,” Mickens v. Taylor, 535 U.S. 162, 173 (2002).

Under this standard, Conte’s failure to tell anyone other

than the prosecutor about his daughter’s job is not itself enough

to establish ineffective assistance. Cuyler “requires proof of

effect upon representation.” Id. Without more, the “inadequate

disclosure” of a conflict is “not an adverse effect on counsel’s

performance.” United States v. Mett, 65 F.3d 1531, 1536 (9th

Cir. 1995); see Blake v. United States, 723 F.3d 870, 878, 881–

82 (7th Cir. 2013). And Samuels does not explain how Conte’s

limited disclosure so significantly affected his performance as

to make the verdict unreliable.

To show an adverse effect, Samuels identifies three points

that he claims Conte failed to raise. According to Samuels,

Conte (1) missed an argument supporting a motion to suppress

his statement about the shotgun found under his bed, (2) failed

to timely oppose expert testimony on drug distribution, and (3)

did not cite evidence to support a multiple-conspiracy

instruction. Samuels posits that Conte avoided these points to

advance his daughter’s interests as an employee in the U.S.

Attorney’s office — i.e., he “pulled punches that a reasonable,

conflict-free counsel would have thrown.” Appellants’ Br. 51.

Samuels concludes that these failures make his verdict

unreliable. We disagree.

To begin, Samuels failed to identify any plausible link

between the alleged conflict and the points that Conte

purportedly missed. See Bruce, 89 F.3d at 896. His theory of

causation — that Conte “pulled punches” to help his daughter

— is belied by the trial record, which shows that the punches

Conte threw were no less forceful than the ones he ostensibly

pulled. For example, as explained below, Conte sought to

sever Samuels’s trial from Fields’s, which would have

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considerably increased the government’s workload, see

Richardson v. Marsh, 481 U.S. 200, 210 (1987). He also

forcefully challenged the credibility of the government’s

central witness and offered alternative explanations for why

Samuels appeared on Fields’s ledger (to pay for car insurance)

and for why Samuels identified the shotgun (to cover for his

girlfriend). With no distinction between these arguments and

the ones that Conte ostensibly missed, Samuels’s theory of

causation is not plausible.

Separate from causation, none of the purportedly missed

arguments identifies a plausible lapse in representation. The

first concerns Conte’s unsuccessful motion to suppress

Samuels’s admission that he owned the shotgun agents found

in his house. Conte had argued that the admission was

involuntary because Samuels was suffering from heroin

withdrawal at the time. The district court disagreed. On

appeal, Samuels faults Conte for not also arguing that the

statement was involuntary because he was under the influence

of cocaine.

Conte’s failure to make this argument was not a colorable

lapse in representation. The “mere fact that one has taken

drugs, or is intoxicated, or mentally agitated, does not render

consent involuntary.” United States v. Castellanos, 518 F.3d

965, 969 (8th Cir. 2008) (cleaned up). Instead, “coercive police

activity” is necessary to find a confession involuntary.

Colorado v. Connelly, 479 U.S. 157, 167 (1986). And the

district court, in rejecting the heroin-withdrawal argument,

found that the audio recording of Samuels’s confession showed

“no coercive police activity.” App. 89. It would thus have

been futile to argue that Samuels’s consent was involuntary due

to cocaine use. And the failure to raise a meritless objection is

not colorably deficient. See Sitzmann, 893 F.3d at 833.

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Second, Samuels argues that Conte failed to investigate or

timely challenge testimony from a government expert that the

amount of cocaine seized from Samuels’s home —

approximately 3.5 grams — was consistent with distribution

rather than personal use. Conte moved to exclude the

testimony on the day of the expert’s testimony, but the district

court denied the motion as untimely.

Samuels again identifies no colorable deficiency. For one

thing, he does not explain why the motion to exclude the expert

testimony might have been successful if timely, so this

argument is too vague and conclusory to support remand. See

id. at 832–33. He instead contends that Conte failed to develop

evidence to counter the government’s expert. But Conte forced

the expert to concede that the amount of cocaine in Samuels’s

possession could have been for personal use. And he relied

heavily on the possibility of personal use in his closing

arguments, contending, for example, that Samuels owned a

scale because he bought in bulk and did not want to be cheated.

In other words, Samuels faults Conte for not offering

cumulative evidence to support personal use, which is not

enough for remand. See id. at 833.

Finally, Samuels contends that Conte botched his request

for a multiple-conspiracy instruction, which would have

clarified that the jury needed to find that Samuels was a

member of the same conspiracy charged in the indictment to

support a guilty verdict. In denying Conte’s request, the district

court reasoned that there was no evidence of Samuels

“interacting with anyone else . . . who’s not identified as a

conspirator in this case.” App. 609. Samuels contends that

there was such evidence, which Conte missed, namely Clark’s

testimony that Samuels obtained crack cocaine to distribute in

Virginia from “a guy named Miguel Harris.” Id. at 391. The

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indictment mentioned neither Harris nor a conspiracy to

distribute crack cocaine.

It is at least plausible that Samuels would have received

the multiple-conspiracy instruction had Conte flagged this

evidence. If requested, a district court must give the instruction

where the “record evidence supports the existence of multiple

conspiracies.” United States v. Sanders, 778 F.3d 1042, 1047

(D.C. Cir. 2015) (cleaned up). And Clark testified that Samuels

“started purchasing” crack from Harris for distribution.

App. 391. This testimony could perhaps support the inference

that Harris was a “regular source,” which would be enough to

create a separate conspiracy. United States v. Morris, 836 F.2d

1371, 1374 (D.C. Cir. 1988).

But Conte’s failure to secure the instruction is not enough

to show that a conflict “significantly affected” his performance

and made the verdict “unreliable.” Mickens, 535 U.S. at 173.

Whatever the contours of this standard, the failure to recall a

single line of testimony in a three-week trial that might support

a peripheral jury instruction cannot fairly be described as

significant. Moreover, it casts no doubt on the verdict, which

found that Samuels was guilty of conspiring to distribute heroin

and fentanyl, not crack cocaine. Samuel’s case thus falls well

outside Cuyler, which “is designed to protect a defendant when

it is impossible to reconstruct what might have occurred

without counsel’s conflict of interest.” Plunk v. Hobbs, 766

F.3d 760, 766 (8th Cir. 2014).

Samuels alternatively contends that Conte was ineffective

under Strickland, which requires him to show that his counsel’s

performance was deficient and prejudicial, see 466 U.S. at 687.

For the reasons given above, Samuels has not proven deficient

performance. And because he does not satisfy Cuyler’s lower

standard to prove a “significant[]” effect on representation, he

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also fails to satisfy Strickland’s more demanding requirement

of prejudice. Mickens, 535 U.S. at 173.

In sum, Samuels has established no colorable claim of

ineffective assistance under Cuyler or Strickland. His Cuyler

claim fails because he has not plausibly proven that Conte’s

alleged conflict of interest caused an adverse effect that rises to

the level of an actual lapse in representation. And his

Strickland claim fails for lack of any colorable case for

deficient performance or prejudice.

Samuels next argues that the district court impermissibly

limited his ability to cross-examine Clark, the government’s

central witness, about his prior bad acts. When Clark testified,

he had previously pleaded guilty to kidnapping and obstruction

of justice as part of a plea agreement that depended on his

cooperation against Samuels in this case. Samuels claims that

Clark earned the kidnapping charge by taking a person hostage

at gunpoint, robbing him, and pointing a gun at the victim’s

head. For obstruction of justice, Samuels contends that Clark

directed a third party to threaten a witness to not testify. Clark

also had other prior convictions, including one for murder.

Samuels sought to cross-examine Clark about his convictions

and the facts underlying them to impeach Clark’s credibility

and to establish that the plea agreement gave Clark a bias.

The district court adopted a halfway approach, explaining

that it had to balance the probative value of Clark’s prior bad

acts against the risk that the facts would “just dirty [him] up

because he’s a bad dude.” App. 428. The court allowed

Samuels to cross-examine Clark about the existence of his prior

convictions; about the facts underlying charges the government

reduced, dropped, or never brought due to Clark’s cooperation;

and about other possible sources of bias. But it excluded

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questions about the facts underlying his convictions, reasoning

that they would be “more prejudicial than probative.”

Appellee’s Supp. App. 490. It also agreed with the government

that those questions risked a “circus within a circus, a trial

within a trial” about Clark. App. 433–34. Finally, it refused to

let Samuels question Clark about the alleged witness

intimidation after concluding that Samuels had no factual basis

in the record to assume a threat occurred.

Samuels contends that the district court’s ruling violated

both the Confrontation Clause and Federal Rule of Evidence

403. Under the Confrontation Clause, a trial court “may limit

cross-examination only after there has been permitted, as a

matter of right, a certain threshold level of cross-examination.”

United States v. Hall, 945 F.3d 507, 513 (D.C. Cir. 2019)

(cleaned up). That threshold is satisfied “so long as defense

counsel is able to elicit enough information to allow a

discriminating appraisal of a witness’s motives and bias.” Id.

(cleaned up). Otherwise, district courts “retain wide latitude”

to “impose reasonable limits on . . . cross-examination” under

the Federal Rules of Evidence. Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986). Relevant here, Rule 403 allows courts

to exclude evidence “if its probative value is substantially

outweighed by a danger of . . . unfair prejudice” or “confusing

the issues.” We review limits on cross-examination for an

abuse of discretion. United States v. Lin, 101 F.3d 760, 768

(D.C. Cir. 1996); Henderson v. Geo. Wash. Univ., 449 F.3d

127, 133 (D.C. Cir. 2006).

The district court did not violate the Confrontation Clause.

Such a violation occurs “only when the court bars a legitimate

line of inquiry that might have given the jury a significantly

different impression of the witness’s credibility.” United

States v. Miller, 738 F.3d 361, 375 (D.C. Cir. 2013) (cleaned

up). Samuels elicited ample testimony to give the jury the

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impression that Clark was lawless and had a substantial reason

to testify in favor of the government. Among other impeaching

facts, the jury learned about Clark’s cooperation agreement; his

prior convictions; and that he robbed and kidnapped a man,

stole a car, and used a firearm during various crimes. This

cross-examination easily clears the threshold required by the

Confrontation Clause. See, e.g., Hall, 945 F.3d at 513 (no

violation where defendant cross-examined government witness

on guilty plea in cooperation deal).

Nor did the district court abuse its discretion under Rule

403. Without acknowledging the court’s concerns about unfair

prejudice, Samuels argues that the salacious facts underlying

Clark’s prior convictions are “information the jury should have

heard to evaluate whether someone with that little regard for

human life and the law would have any compunction about

lying under oath to reduce his time in prison.” Appellants’ Br.

75. But while “evidence of lawlessness can undermine the

perpetrator’s probable truthfulness . . . admission of such

evidence is subject to the sound discretion of the trial court.”

United States v. Garcia Sota, 948 F.3d 356, 363 (D.C. Cir.

2020); see also FED. R. EVID. 609(a)(1)(A). And the court here

acted well within its discretion in concluding that the risk of

unfair prejudice stemming from the facts it excluded

substantially outweighed any cumulative probative value. This

Court has long acknowledged the risk that evidence of prior

criminal activity would impermissibly lead juries to discredit

witnesses because they are “bad men,” rather than because they

are biased or not credible. United States v. Fox, 473 F.2d 131,

135 (D.C. Cir. 1972). Thus, “when evidence of a prior

conviction is admitted for purposes of impeachment, crossexamination is usually limited to the essential facts rather than

the surrounding details of the conviction.” United States v.

Baylor, 97 F.3d 542, 544 (D.C. Cir. 1996). Not only did the

district court allow cross-examination on the essential facts of

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Clark’s convictions, it let the jury hear about a wide range of

Clark’s other criminal activity. We find no error in the district

court’s limited restrictions on Clark’s cross-examination.

Samuels also contends that the details underlying the

obstruction charge are particularly probative because they

involved a threat to intimidate a witness. But the district court

did not limit questions about witness intimidation based on

Rule 403. As noted, it restricted those questions because

Samuels lacked a factual basis to ask them. See Lin, 101 F.3d

at 768 (“counsel must have a reasonable basis for asking

questions on cross-examination which tend to incriminate or

degrade the witness”) (cleaned up). In his reply brief, Samuels

objects that the district court erroneously discounted evidence

that provided a factual basis for the questions. This objection

is forfeited, see M.M.V. v. Garland, 1 F.4th 1100, 1111 (D.C.

Cir. 2021), and also meritless. Samuels points to no record

evidence suggesting that Clark threatened a witness. Instead,

he gestures at unspecified grand-jury testimony that he admits

is not in the record, which is not good enough. See United

States v. Boyd, 54 F.3d 868, 871–72 (D.C. Cir. 1995) (basis for

cross-examination must be in the record). Samuels also faults

the government for not providing further evidence to support

its representation that Clark’s obstruction charge did not

involve threats. But an objection to limits on crossexamination is not the appropriate vehicle to challenge the

government’s compliance with discovery obligations. Samuels

held the burden of proffering a sufficient factual basis to

question Clark about threats. See Lin, 101 F.3d at 768. And

the district court did not abuse its discretion when it ruled that

he failed to satisfy that burden.

Moreover, any error by the district court would have been

“rendered fully harmless by the broad range of other heinous

conduct that the court allowed defense counsel to bring out in

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cross-examination.” Garcia Sota, 948 F.3d at 363; see Van

Arsdall, 475 U.S. at 684; United States v. Whitmore, 359 F.3d

609, 622 (D.C. Cir. 2004). As explained, Samuels extracted

testimony from Clark about his convictions and the facts

underlying several violent crimes for which the government

declined to prosecute him. Samuels’s inability to elicit similar

impeaching evidence was harmless because the crossexamination “was enough to enable the jury to assess the

relation between [Clark’s] lawlessness and his propensity for

truthfulness.” Garcia Sota, 948 F.3d at 363.

In sum, the district court acted well within its discretion

under the Confrontation Clause and Rule 403 in limiting

Clark’s cross-examination, and any improper limits would

have amounted to harmless error.

VII

We next consider the arguments made by Samuels and

Tucker that the district court abused its discretion in denying

their motions to sever their trials from Fields’s trial. Samuels

and Tucker argue that severance was warranted due to

“spillover” prejudice resulting from the disparity in evidence

between them and Fields as well as Fields’s obstreperous

behavior during trial. Fields, the undisputed ringleader of the

drug distribution conspiracy, frequently displayed less than

exemplary behavior in court. At one point, he absented himself

from the trial for part of a day. Towards the end of trial, Fields

testified on his behalf. He was the only defendant to do so, and

the testimony did not go well. Fields gave conflicting and

unbelievable explanations for the evidence against him,

accused the government of planting evidence, speculated about

the government’s motives for prosecuting him and his codefendants, and became combative with the prosecutor and the

district court. Both before and after Fields’s testimony,

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Samuels and Tucker moved to sever their trials on the ground

that Fields’s lies and misbehavior would be held against them

by the jury. The district court denied this motion, explaining

that Fields’s credibility was a matter for the jury to decide and

that Fields did not say anything “about the other defendants that

already didn’t come in the government’s case-in-chief.” App.

725.

“We review the denial of a motion to sever for abuse of

discretion.” United States v. Wilson, 605 F.3d 985, 1015 (D.C.

Cir. 2010). The Federal Rules of Criminal Procedure permit

joinder of defendants “alleged to have participated in the same

act or transaction, or in the same series of acts or transactions,

constituting an offense or offenses.” FED. R. CRIM. P. 8(b).

Joint trials are preferred in federal criminal cases because they

“promote efficiency and serve the interests of justice by

avoiding the scandal and inequity of inconsistent verdicts.”

Zafiro v. United States, 506 U.S. 534, 537 (1993) (cleaned up).

The preference for joint trials is “‘especially strong’ when ‘the

respective charges require presentation of much the same

evidence, testimony of the same witnesses, and

involve . . . defendants who are charged, inter alia, with

participating in the same illegal acts.’” Wilson, 605 F.3d at

1016 (cleaned up). We find that neither the disparity in

evidence between co-defendants, nor Fields’s behavior during

trial, warranted severance because any risk of prejudice was

curable with appropriate instructions.

A joined defendant may seek to sever his trial from that of

his

co-defendants.

“If

the

joinder

of . . . defendants . . . appears to prejudice a defendant . . . ,

the court may . . . sever the defendants’ trials, or provide any

other relief that justice requires.” FED. R. CRIM. P. 14(a)

(emphasis added). The permissive language of this rule makes

clear that severance is not required “even if prejudice is

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shown.” Zafiro, 506 U.S. at 538–39. Instead, Rule 14 grants a

district court “significant flexibility to determine how to

remedy any potential risk of prejudice posed by the joinder of

multiple defendants in a single trial.” United States v. Moore,

651 F.3d 30, 95 (D.C. Cir. 2011) (per curiam). Severance is

the exception rather than the rule and is required only when

there is “a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the jury

from making a reliable judgment about guilt or innocence.”

Zafiro, 506 U.S. at 539. Although a serious risk may arise

when “defendants are tried together in a complex case and they

have markedly different degrees of culpability,” even in cases

where the risk of prejudice is high, “less drastic measures, such

as limiting instructions, often will suffice to cure any risk of

prejudice.” Id. In light of these principles, motions to sever

should be granted “sparingly.” United States v. Celis, 608 F.3d

818, 844 (D.C. Cir. 2010).

Appellants “carr[y] the burden of demonstrating prejudice

resulting from a failure to sever.” United States v. Gooch, 665

F.3d 1318, 1336 (D.C. Cir. 2012). Samuels and Tucker here

assert spillover prejudice, namely the risk “the jury would use

evidence of one defendant’s guilt against another.” United

States v. Spriggs, 102 F.3d 1245, 1256 (D.C. Cir. 1996). They

maintain this prejudice arose from trying them, peripheral

players in the conspiracy, together with Fields, “a perjurious

and obstructionist lead defendant.” Appellants’ Br. 97.

Samuels and Tucker fail to demonstrate prejudice.

First, Samuels and Tucker have not demonstrated

prejudice from evidentiary spillover. Disparity in evidence

requires severance “when the evidence against one defendant

is ‘far more damaging’ than the evidence against the moving

party,” but will not require severance in a conspiracy trial when

there is “substantial and independent evidence of each

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defendant’s significant involvement in the conspiracy.”

Moore, 651 F.3d at 95–96 (cleaned up). “[A]bsent a dramatic

disparity of evidence, any prejudice caused by joinder is best

dealt with by instructions to the jury to give individual

consideration to each defendant.” Id. at 95 (cleaned up). The

varying roles played by members of a conspiracy will “not

render joint trial inappropriate as long as the jury can

reasonably compartmentalize the substantial and independent

evidence against each defendant.” United States v. Straker,

800 F.3d 570, 628 (D.C. Cir. 2015) (per curiam). As we will

explain in Part VIII, the government introduced substantial and

independent evidence of Samuels’s and Tucker’s involvement

in the conspiracy. Although Samuels and Tucker played a

subordinate role in the conspiracy led by Fields, we hold “the

disparity of evidence did not rise to a level necessary to

mandate severance.” Moore, 651 F.3d at 96.

Second, Samuels and Tucker have not established

prejudice from Fields’s misbehavior during trial. Courtroom

misconduct by a co-defendant must be especially egregious to

mandate severance. See, e.g., United States v. Rocha, 916 F.2d

219, 229 (5th Cir. 1990) (no severance required when codefendant “mouthed the words, ‘You are dead,’ and moved a

finger across his throat” during a witness’s direct examination);

United States v. Marshall, 458 F.2d 446, 448, 452 (2d Cir.

1972) (no severance required when a co-defendant directed

obscenities at the court and witnesses, absented himself, threw

a chair towards the jury box, and cut his wrists during

summation). “Cautionary instructions . . . should remain the

primary weapons against improper jury bias.” United States v.

Mannie, 509 F.3d 851, 857 (7th Cir. 2007). Fields’s behavior

was mildly disruptive: he was combative on the stand, refused

to attend part of the trial, and made demonstrably false

statements during his testimony. This misbehavior is simply

not so beyond the pale as to mandate severance.

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At bottom, this is not a case in which curative instructions

were ineffective against potential prejudice. The district court

gave several careful and tailored instructions throughout the

trial. When Fields failed to show up one day, the district court

instructed the jury that his “absence should not . . . be viewed

as evidence or held against any other defendant in this matter

in any way whatsoever.” App. 347. The district court also

instructed the jury that “each defendant is entitled to have the

issue of his guilt as to each of the crimes for which he’s on trial

determined from his own conduct and from the evidence that

applies to him as if he were being tried alone.” Appellee’s

Supp. App. 784–85. The instructions explicitly stated that the

jury’s verdict as to one defendant should not “influence [its]

verdict with respect to any other defendant as to that count or

any other count in the Indictment.” Id. at 785. The

effectiveness of the district court’s instructions is indicated by

the jury returning mixed verdicts as to each of the defendants,

including Fields. See United States v. Gilliam, 167 F.3d 628,

636 (D.C. Cir. 1999) (explaining that mixed “verdicts indicate

that the jury was able to distinguish between the defendants”).

We presume that juries follow the court’s instructions when, as

here, there is no evidence to the contrary. Id.

The district court cured any potential prejudice to Samuels

and Tucker with limiting instructions and did not abuse its

discretion in denying their motions to sever.

VIII

We turn next to Samuels’s and Tucker’s challenge to the

sufficiency of the evidence to sustain their convictions for

conspiracy to distribute heroin under 21 U.S.C. § 846.

To overturn a jury verdict for insufficient evidence, “a

defendant faces a high threshold.” United States v. Washington,

12 F.3d 1128, 1135 (D.C. Cir. 1994). In reviewing for

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sufficiency of the evidence, we consider “‘whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’”

United States v. Gaskins, 690 F.3d 569, 576–77 (D.C. Cir.

2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

In applying this standard, we “draw[] no distinction between

direct and circumstantial evidence, and ‘giv[e] full play to the

right of the jury to determine credibility, weigh the evidence

and draw justifiable inferences of fact.’” United States v.

Williams, 836 F.3d 1, 6 (D.C. Cir. 2016) (quoting United States

v. Battle, 613 F.3d 258, 264 (D.C. Cir. 2010)).

To convict Samuels and Tucker of conspiracy to distribute

heroin, the government had to prove they acted knowingly and

with the “specific intent to further the conspiracy’s objective.”

United States v. Childress, 58 F.3d 693, 708 (D.C. Cir. 1995).

The evidence here easily passes muster under our deferential

standard of review.

With respect to Samuels, sufficient evidence supports that

he knowingly furthered the conspiracy to distribute heroin.

Fields controlled operations in the drug distribution conspiracy

from the suite above the barbershop, where agents found

approximately $60,000 worth of heroin as well as other drug

paraphernalia. The evidence established that Samuels assisted

Fields in this endeavor. Clark, the cooperating witness who

testified that he frequently went to the barbershop to obtain

heroin from Fields, placed Samuels regularly with Fields while

Fields packaged drugs for distribution. GPS data from

Samuels’s cellphone also put him in the vicinity of the

barbershop hundreds of times during the life of the conspiracy.

As Clark testified, Samuels assisted Fields by opening the door

and controlling access to the upstairs suite where the drugs

were, which was corroborated by text messages to Samuels that

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included “let me in” and “open the door.” Appellee’s Supp.

App. 191–92. Text messages also demonstrated that Samuels

was in frequent contact with other members of the conspiracy

and used coded references to drug transactions. Moreover,

Clark testified that Samuels had delivered five grams of heroin

on one occasion when Clark was in a car with two other

members of the conspiracy. Viewed in the light most favorable

to the government, this evidence, combined with Samuels’s

frequent presence in the barbershop while Fields, the leader of

the conspiracy, engaged in drug transactions, is sufficient to

sustain Samuels’s conviction for conspiracy to distribute

heroin. See, e.g., Childress, 58 F.3d at 712 (finding the

evidence sufficient when defendants personally handled drugs,

prepared them for sale, and did so at the direction of the

conspiracy’s leader).

Sufficient evidence also supported Tucker’s conviction

and established his role as a street-level dealer in the

conspiracy. Clark’s testimony put Tucker at the barbershop

frequently, “[a]cting like [Tucker had] a license to sell

drugs . . . [h]aving . . . no discretion, . . . no trying to hide it or

anything, just out in the open.” Appellee’s Supp. App. 457.

Tucker’s frequent presence at the barbershop was corroborated

by GPS data and law enforcement surveillance. Notably,

agents observed Tucker engaged in “what appeared to be a

hand-to-hand narcotics transaction” on the street in front of the

barbershop. Id. at 363. Clark testified that he saw Tucker

coming from the upstairs suite of the barbershop adjusting his

“lower crotch area,” and explained that when he used to sell

drugs, he hid his stash in his “crotch area” to avoid detection

by the police. Id. at 458. Clark also explained that heroin could

be pink or tan depending on the substance it was cut with and

that dealers often used slang to talk about narcotics. Tucker’s

text messages mentioned selling pink shirts and tan shoes,

statements the jury could reasonably infer were references to

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narcotics. Given Tucker’s close relationship with Fields and

frequent presence at the barbershop, the jury also could

reasonably infer that Tucker obtained the heroin he sold from

Fields. Viewing the evidence in the light most favorable to the

government, sufficient evidence supported Tucker’s

conviction for conspiracy to distribute heroin.

Samuels and Tucker also seek to rely on Gaskins, in which

this court found the evidence insufficient to sustain a drugtrafficking conspiracy conviction. In that case, despite

extensive police surveillance and searches, no evidence put

Gaskins in the presence of drugs, nor did any witness connect

him to the conspiracy. See 690 F.3d at 572. Tucker argues that

the evidence against him is similarly flimsy because he did not

directly text members of the conspiracy, and Clark’s testimony

and the street-level buys at most established his role as an

independent street-level dealer. Samuels also points to the lack

of controlled buys, wiretaps, or surveillance as reasons why the

evidence against him was insufficient. These arguments

founder on the fact that the evidence against both Samuels and

Tucker was far more robust than the evidence in Gaskins.

Unlike Gaskins, both Samuels and Tucker “discussed drugs,

distributed drugs, [and were] in the presence of drugs

connected to the conspiracy.” Gaskins, 690 F.3d at 577; see

also United States v. Shi, 991 F.3d 198, 207 (D.C. Cir. 2021)

(distinguishing Gaskins as a case in which there was an

“overwhelming lack of evidence”).

For these reasons, the evidence is sufficient to sustain the

convictions of Samuels and Tucker.

Tucker also challenges his sentence, arguing that the

district court erred in calculating the quantity of heroin

attributable to him for purposes of setting his Sentencing

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Guidelines range. Although the district court’s calculation was

based on inferences, those inferences were reasonable in light

of the record.

We “review[] a sentence imposed under the Guidelines to

determine whether it is ‘reasonable.’” United States v. Flores,

995 F.3d 214, 219 (D.C. Cir. 2021) (quoting United States v.

Blalock, 571 F.3d 1282, 1285 (D.C. Cir. 2009)). This

determination involves two steps: First, we ensure the district

court did not commit a “significant procedural error,” and

second, we review whether the sentence is objectively

reasonable. United States v. Settles, 530 F.3d 920, 923 (D.C.

Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51

(2007)).

Tucker challenges only the district court’s

methodology for calculating the drug quantity attributable to

him — a procedural error. Significant procedural errors

include “failing to calculate (or improperly calculating) the

[Sentencing] Guidelines range, . . . selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the

chosen sentence.” Gall, 552 U.S. at 51.

A defendant’s sentence for a drug conspiracy is based on

the amount of drugs attributed to him. Under the Sentencing

Guidelines, a defendant’s base offense level is derived from his

“relevant conduct,” which includes the drug quantity involved

for an offense. U.S.S.G. § 1B1.3 (2018) (cleaned up); United

States v. Burnett, 827 F.3d 1108, 1120 (D.C. Cir. 2016). When

necessary, such as when there has been “no drug seizure or the

amount seized does not reflect the scale of the offense,” the

district court must approximate the drug quantity. U.S.S.G.

§ 2D1.1 cmt. n.5. Further, when a defendant is part of a drug

conspiracy, his relevant conduct includes “all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.” United States v. Bostick,

791 F.3d 127, 158 (D.C. Cir. 2015) (quoting U.S.S.G.

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§ 1B1.3(a)(1)(B)).

“We review the District Court’s

determination of drug quantity relevant for sentencing under a

clear error standard.” United States v. Mack, 841 F.3d 514, 527

(D.C. Cir. 2016).

The district court attributed 75 grams of heroin to Tucker.

Although the presentence report found Tucker’s relevant

conduct included 546.7 grams due to his involvement in the

conspiracy, the district court declined to hold Tucker

responsible for all the sales made from the barbershop or to

Clark. Instead, it estimated the amount of heroin for which

Tucker was personally responsible. Based on the amount of

heroin sold by Tucker to the confidential informant (0.58

grams), the GPS data, Clark’s testimony, and surveillance, the

district court estimated that Tucker sold 0.5 grams of heroin

five times weekly for thirty weeks, totaling 75 grams. That

quantity resulted in a Guidelines range of 51 to 63 months, and

with Tucker’s career offender enhancement, the range

increased to 210 to 262 months. The district court found this

range overstated Tucker’s criminal history, so it used the

sentences received by other members of the conspiracy as

benchmarks and ultimately sentenced Tucker to sixty months’

imprisonment. The district court’s calculation of the drug

quantity attributable to Tucker, which was based on reliable

evidence in the record, was not clearly erroneous.

Tucker argues the district court erred by using a method

for calculating the drug quantity for his base offense level that

was “unduly speculative.” Appellants’ Br. 105. We find,

however, that the district court employed a reasonable method,

which resulted in a conservative estimate. While it found

“Tucker was part of a core group of individuals that operated

out of that barbershop,” Appellee’s Supp. App. 794, it chose

not to attribute the 546.7 grams of heroin recommended by the

presentence report. The court instead used the amount of

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heroin Tucker distributed in a single controlled buy to

extrapolate five similarly sized sales per week for thirty weeks.

Although one sale is a small sample size, that does not render

the court’s extrapolation unduly speculative, particularly when

it results in a conservative estimate. Cf. United States v.

Correa-Alicea, 585 F.3d 484, 491 (1st Cir. 2009) (affirming a

district court’s use of two controlled purchases multiplied by a

“highly conservative” “estimate of one transaction per day”).

In addition, the district court’s estimation that five sales per

week were of heroin is reasonable based on Tucker’s frequent

presence at the barbershop and the quantity of heroin seized

there. “[D]rug quantity calculations are an art, not a science,”

and the district court chose a reasonable method. United States

v. Block, 705 F.3d 755, 760–61 (7th Cir. 2013) (explaining “we

afford trial courts some room for speculation and reasonable

estimation so long as percentages and quantities were not

pulled out of thin air”) (cleaned up).

In sum, the district court did not clearly err in calculating

the drug quantity attributable to Tucker.

For the foregoing reasons, we affirm.

So ordered.

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Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 19-3042

September Term, 2021

1:18-cr-00267-APM-6

Filed On: January 13, 2022

United States of America,

Appellee

Lonnell Tucker,

Appellant

-----------------------------Consolidated with 19-3043, 19-3078

BEFORE:

Katsas, Rao, and Walker, Circuit Judges

ORDER

Upon consideration of appellant Tucker’s petition for panel rehearing filed in No.

19-3042 on September 20, 2021, and appellant Fields’ petition for panel rehearing filed

in No. 19-3043 on September 24, 2021, it is

ORDERED that the petitions be denied.

Per Curiam

BY:

FOR THE COURT:

Mark J. Langer, Clerk

/s/

Daniel J. Reidy

Deputy Clerk

USCA Case #19-3042

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Filed: 01/13/2022

Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 19-3042

September Term, 2021

1:18-cr-00267-APM-6

Filed On: January 13, 2022

United States of America,

Appellee

Lonnell Tucker,

Appellant

-----------------------------Consolidated with 19-3043, 19-3078

BEFORE:

Srinivasan, Chief Judge, and Henderson, Rogers, Tatel, Millett,

Pillard, Wilkins, Katsas, Rao, Walker and Jackson, Circuit Judges

ORDER

Upon consideration of appellant Tucker’s petition for rehearing en banc filed in

No. 19-3042, and appellant Samuels’ corrected petition for rehearing en banc filed in

No. 19-3078, the opposition thereto, and the absence of a request by any member of

the court for a vote in either No. 19-3042 or No. 19-3078, it is

ORDERED that the petitions be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

-48a-

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

LONNELL TUCKER (6),

Defendant.

________________

)

CR No. 18-267

Washington, D.C.

June 14, 2019

3:00 p.rn.

TRANSCRIPT OF SENTENCING HEARING PROCEEDINGS

BEFORE THE HONORABLE AMIT P. MEHTA

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Government:

Christopher Macchiaroli

Gregory P. Rosen

U.S. ATTORNEY'S OFFICE

FOR THE DISTRICT OF COLUMBIA

555 Fourth Street, NW

Washington, D.C. 20530

(202) 252-7825

Christopher.

Macchiaroli@usdoj.gov

gregory.rosen@usdoj.gov

WilliamPZaremba@gmail.com

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APPEARANCES CONTINUED:

For Defendant

Lonnell Tucker:

Brian K. McDaniel

MCDANIEL LAW GROUP, PLLC

1920 L Street, NW

Suite 303

Washington, D.C. 20036

(202) 331-0793

bkmassociates@aol.com

Probation Officer:

Kelli Willett

Court Reporter:

William P. Zaremba

Registered Merit Reporter

Certified Realtime Reporter

Official Court Reporter

U.S. District Court

for the District of Columbia

333 Constitution Avenue, NW

Room 6511

Washington, D.C. 20001

(202) 354-3249

WilliamPZaremba@gmail.com

Proceedings recorded by mechanical stenography; transcript

produced by computer-aided transcription

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Let me just review what I've reviewed and

received, and then we'll talk about drug quantities, as

I think that's the only objection that Mr. McDaniel has

lodged, but correct me if I'm wrong.

So I've reviewed the Presentence Report, which is

at 255, plus the sentencing recommendation of Probation at

256, the government's memorandum in aid of sentencing at 259

and the supplemental memo at 272, defendant's memorandum in

aid of sentencing at 265, and the supplemental memo at 273.

I also received via email a submission from

Ms. Carson, which consisted of a letter, as well as a couple

of slide presentations and some photographs.

I also received via email the police report

related to the sex assault conviction Mr. Tucker incurred

back in

well, back in 1995.

So other than that, is there anything else

I should have -- is there something I received that I

haven't listed?

MR. MACCHIAROLI:

Your Honor.

MR. McDANIEL:

THE COURT:

Not from the government,

No, Your Honor.

All right.

Then let's turn to the

issue at hand.

Let me first ask Mr. McDaniel:

Is the drug

quantity the only objection to the Presentence Report that

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you have?

MR. McDANIEL:

THE COURT:

MR. McDANIEL:

Yes, Your Honor.

All right.

I asked the Court to vary downward

in his Criminal History calculation.

But I don't view that

as an objection, I view that as a request for downward

departure.

THE COURT:

Right.

All right.

So let's talk about drug quantity.

Understood.

And just to set the stage here, Probation has

calculated the drug quantity attributable to Mr. Tucker is

546.7 kilograms of converted drug weight.

that's 546.7 grams of marijuana -- excuse me, heroin, which

is the only drug as to which the jury found Mr. Tucker

responsible in the course of the conspiracy.

That amount,

Essentially,

the 546.7, consists of 275 grams that

were seized above the barbershop, 31.7 grams seized from

Mr. Venable, and then an estimate of 240 grams that were

distributed to Mr. Clark, who was the government's

cooperating witness.

And so that's what gets us to 546.

So I'm happy to hear arguments from both sides.

And let's talk about where you all think things

ought to come out in light of the evidence against

Mr. Tucker.

MR. McDANIEL:

I'm sorry, Your Honor, which page

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and his agreement to join the conspiracy consisted of a far

lesser role and far lesser quantity.

MR. McDANIEL:

And even more specifically than that, I would

point the Court to the comments for Section 1B1.3 of the

Guidelines, which, in essence, supports, I believe, my

position.

The question of foreseeability is just one of the

Yes, Your Honor.

questions at Section 1B1.3, comment n.3(A).

THE COURT:

Sorry, Mr. McDaniel,

I'm going to ask

you to repeat that just so I can get on the same page as

you.

MR. McDANIEL:

THE COURT:

MR. McDANIEL:

THE COURT:

And which comment?

MR. McDANIEL:

THE COURT:

MR. McDANIEL:

I apologize, Your Honor.

1B1.3 --

lDl.l?

Yes.

Right.

N.3.

You say "n.3"?

I believe that's right.

I believe

it's note 3(A).

THE COURT:

Anyway, why don't you go ahead and

read it to me, because I'm not sure I'm following where you

are, but go ahead and read it to me.

MR. McDANIEL:

So the government has to prove at

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Subsection 1 that the narcotics that they're attempting to

hold Mr. Tucker responsible for were within the scope of the

jointly undertaken criminal activity in furtherance of the

criminal activity,

with the criminal activity.

and reasonably foreseeable in connection

THE COURT:

Right.

MR. McDANIEL:

And so it's not enough,

Your Honor -- in,

I think, one of the examples or

illustrations that is provided in support of this notion is

that -- and it's at No. 4, Subsection 4, that if Defendant P

is a street-level drug dealer, who knows of other

THE COURT:

current Guidelines?

Can I

MR. McDANIEL:

THE COURT:

MR. McDANIEL:

exactly sure which page.

THE COURT:

just ask you:

Do you have the

I think I do, Your Honor.

What page are you?

I printed this out,

and so I'm not

Do you have a page on the bottom of

your printout?

MR. McDANIEL:

THE COURT:

MR. McDANIEL:

No, Your Honor.

Okay.

Go ahead.

I apologize.

I trust --

The suggestion is, Your Honor, that

the fact that Mr. Tucker knows Mr. Fields is not enough for

the government upon -- to rely upon in making the assertion

that he would have then known about all of the narcotics,

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for instance, in this case, that were in a room that no one

has testified that he's ever even been in.

And absent that evidence, Your Honor, what we're

doing is we are speculating about what it is that Mr. Tucker

would have known about, particularly given the dearth of

information that the government presented during the trial

about Mr. Tucker.

And so there was evidence that Mr. Tucker was in

and around that area on nearly a daily basis that was

provided by the GPS.

Now, that GPS shows that Mr. Tucker was in and

around the barbershop, but there was no testimony or

evidence that on any one of those particular days or even

all of those days, more importantly for this analysis, that

Mr. Tucker was going there to sell drugs.

that evidence is, Your Honor, is that he was there.

It shows what

The Court must call upon, and the government is

responsible for, providing the Court evidence that he was

selling drugs on a particular day and what that drug was,

because there was evidence -- and I think the government

attempted to suggest that Mr. Tucker was also selling other

narcotics, marijuana, for instance.

And so the argument is, Your Honor, that the

government has a responsibility to provide the Court with

evidence that shows the support for what would be

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foreseeable to Mr. Tucker, not that he was there, because

mere presence alone, Your Honor, does not get them there.

And in addition to that, Your Honor, the testimony

from the cooperating witness that the government relies

heavily upon was also absent that particular information.

The witness never told the Court that it saw Mr. Tucker

selling particularly heroin, never said that he saw

Mr. Tucker receive any heroin.

The jury was asked to determine whether or not

Mr. Tucker was guilty of participating in a conspiracy to

sell a detectable amount of heroin.

a very small amount.

A detectable amount is

Should the government have wanted to hold

Mr. Tucker responsible for a higher level of narcotics, then

they should have really indicted him for that.

have indicted him for 100 grams or more or 500 grams or

more, whatever it is they wanted to indict him with, because

then the jury would have been called to answer the question

whether or not the government had proof that he sold any

particular amount of heroin.

They should

But there is none, yet now the government wants to

fall back on the position that Mr. Tucker is in and around

that area and so he should be held responsible for all the

drugs that were there because all of that is foreseeable to

him, and that just does not meet the burden, Your Honor.

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And for that reason , we would as k that the Court

not hold him responsible , particularly fo r the amoun t of

narcotics which is attributable to Mr . Tucker in connection

with what was retrieved from t he barber shop .

THE COURT :

Thank you , Mr . McDaniel .

MS . WEST:

Thank you , Your Honor.

THE COURT :

Mr . Macchiaroli .

MR . MACCHIAROLI :

Your Honor , let me just begi n by

the fact that we ' r e at sentencing here .

The jury has convicted Mr . Tucker of not just

b eing at the barbers hop, not knowing Mr . F i e l ds , but

conspiring with Mr . Fields to traffic narcotics fr om on or

about June 1st , 2017 , through Feb r uary 1 st , 20 1 8 , with the

highest standard of proof required in the country:

reasonable doubt .

This Court as k ed the gove rnment to put

Beyond a

forth all

the fac ts in suppor t of the relevant conduct.

pages , we submitted pro posed findings of f act , laying out

every detail :

Lonnell Tu c k er was selling drugs as if he had a license to

sell ; that he was alway s selling when he wa s there to buy

drugs from Mr . Fields ; we have the text messages that t al k

about what color it is , gray , is i t pink , is it pink hard

stuff , all lingo consistent wi th heroin wh ich was- recovered

above the b arb ershop wi th fe ntanyl , wh ich is t h e item that

And for s ix

The con fi d ential informant ' s testimony ; t hat

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"If the defendant plays a managerial role in the

drug conspiracy,

managers of the drug conspiracy and shares in the

conspiracy's profits, he may be held responsible for the

entire drug quantity attributable to the conspiracy during

the time he was a participant."

coordinates drug distribution with other

And then further in U.S.

versus Thomas,

it says,

"The Court relies on evidence of a defendant's relationship

to and involvement with the conspiracy in order to draw

permissible inferences regarding his knowledge and agreement

to be part of a drug conspiracy and the foreseeability of

his co-conspirator's conduct.

"The Court's findings concerning the nature and

extent of the defendant's relationship to the conspiracy are

used as a basis for a conclusion about whether he should be

held vicariously liable for the conduct of his

co-conspirators.•

So here are my factual findings,

having listened

to the evidence at this trial and having become quite

familiar with the players in this conspiracy:

There's no question that Mr. Samuels -- excuse me,

that Mr. Tucker was part of a core group of individuals that

operated out of that barbershop.

Mr. Hamilton, Mr. Tucker, Mr. Venable, Mr. Smith were a

regular presence at the barbershop, the core group of people

Mr. Fields, Mr. Samuels,

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who worked in and out of that barbershop.

And there's no doubt that it was -- this is,

perhaps, an overused term but I think it's accurate in this

instance:

to the barbershop, buy some drugs, leave the barbershop.

That was pretty well-established.

It was an open-air drug market.

You can walk up

Two locations and, really, three, to actually make

drug sales within the barbershop itself, which is on the

first ground level floor,

and then above the barbershop on

the second floor,

found, and then outside on the front steps or on the front

stoop on the sidewalk right out in front of the barbershop.

where the large quantity of drugs were

If not actual transactions taking place, there

certainly look to be transactions, suspected transactions,

and instances in which people were directed into the

barbershop, at least based upon the confidential informant's

information regarding the confidential informant, who passed

away, being directed to others to actually make purchases

and transactions.

There's no doubt Mr. Tucker was regularly at the

barbershop.

testimony of Mr. Clark, who said that every time he was

there, which was at least once or twice a week, he would see

Mr. Tucker there.

That's confirmed by the GPS data and the

And the reality is that surveillance picks

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Mr. Tucker up there all the time.

You know,

law enforcement can't be there every

day, they don't attempt to be there every day.

a seven -- I'm sorry, eight-month-long investigation, at

least that's the conspiracy period, and Mr. Tucker is

repeatedly seen there.

with the confidential informant on June the 15th of 2017,

.58 grams of heroin for $100, purchased from Mr. Tucker

inside the barbershop.

But this was

He engages in a controlled purchase

I recognize that the confidential informant's not

here to tes

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.